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The Cost Of Conflicting Judgements To INEC, Candidates (Part 3)




Supreme Court Interventions, Remedies The Electronic Card Reader Machine for accreditation of voters was provided for in the Approved Guidelines and Regulations for the conduct of the 2015 General Elections. Prior to the authorization of its use by the Guidelines, Sections 49 (1) and (2) of the Electoral Act 2010 (as amended) had adopted analogue procedure for the accreditation process.  The National Assembly perhaps went to sleep by not amending the Electoral Act in order to replace the Voters’ Register (analogue procedure) with the Card Reader Machine, in order to serve as the sole determinant of valid accreditation process. The 7-man panel of the Supreme Court led by the Chief Justice of Nigeria, Justice Mahmud Mohammed in the appeal number SC.1004/2015 in the matter between EDWARD NKWEGU OKEREKE (APPELLANT) AND NWEZE DAVIDUMAHI AND OTHERS (RESPONDENTS), held that; ‘’… since the Guidelines and Manual which authorized the use and deployment of the electronic card Reader Machine were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the voters’ Register whose judicial roots are firmly embedded in the selfsame Electoral Act from which it (the Voters’ Register), directly, derives its sustenance and currency’’. Hon. Justice Chima Centus Nweze, who delivered the lead judgment said “the lower court was right in holding that the Card Reader Report was incomplete, unreliable and incapable of proving the appellant’s allegation of improper accreditation/over-voting’’. Should Voters’ Register or Card Reader Machine Report be the determinant of valid accreditation?

This had been the basis of conflicting judgment amongst the Court of Appeal Divisions recently. While the Lagos division of the Court of Appeal in the AGBAJE V AMBODE appeal declared against the use of the Card Reader, the Port Harcourt division’s Court of Appeal held otherwise. The certainty of law is what the Supreme Court had decided to guarantee in the country with its pronouncements in the gubernatorial appeal judgments; even if the heavens are to fall or hell let loose.  As expected, there were accusations from some quarters that some apex court justices were compromised, notwithstanding that the judgments which were unanimously delivered by 7 Justices, whose identities were earlier not made known to parties prior to sitting and concomitantly delivering judgement same day.. Need to Review Laws on Composition of Election Petition Tribunals What militates against qualities of election petition tribunal judgements mostly has to do with the composition of the election petition tribunals by the Court of Appeal. There were cases of mix-up in 2015, whereby judges other than high court judges were appointed to head election petition tribunals. Tribunal judges were removed, while those that replaced them had for the concerned that election petition matters are sui generis carried on, only to lead to dismissal of such tribunal judgements at the appellate courts; and miscarriage of justice in general.

While at midway to hearing of the petition filed against election of Governor Nyesom Wike at the Rivers state Governorship Election Petition Tribunal, the Court of Appeal President, Justice Zainab Bulkachuwa removed the tribunal chairman, Justice Mu’azu Abdulkadir Pindiga due to adverse security report and the advice of the National Judicial Council (NJC). Consequently, Justice Mohammed Suleiman Ambrosa who was previously on the Rivers State National Assembly Elections Petitions Tribunal panel was brought in to replace Justice Pindiga; also deployed to head another tribunal in Rivers state. Curiously, the newly constituted panel with Justice Ambrosa as chairman completed the hearing of those applications on September 9, 2015 and delivered ruling in them and subsequently delivered judgement in the election petition matters on October 24, 2015. In Sokoto state Govt Vs Kamdex (Nig) Ltd (2007) 7 NWLR (Pt. 1034) 492-493, the Supreme Court held that once a judicial official who did not participate in the hearing participates in the delivery of the judgement or ruling, the judgement or ruling becomes void ab initio notwithstanding the fact that the majority of the judges or judicial officers who delivered the judgement or ruling participated in hearing. Section 294 (1) and (2) of the 1999 Constitution (as amended) and Paragraph 25 (2) of the 1st Schedule to the Electoral Act 2010 (as amended) supports the Supreme Court verdict above. Justice K.M.O. Kekere-Ekun who delivered lead judgement in Governor Wike’s appeal against the concurrent judgements of the Court of Appeal and Election Tribunal that nullified his 2015 election held that the ruling delivered on September 9, 2015 was without jurisdiction, and it is a nullity.

‘’In the instant case, Pindiga, J as chairmanwith Leha, J and Taiwo, J heard the application.

The ruling delivered on 9/9/2015 signed by Ambursa, J as chairman and Leha and Taiwo, JJ as members, reviewed the submis of learned counsel made at the hearing of the application before dismissing same. There is no doubt that Ambursa, J could not have formed an opinion on the submissions of learned counsel, which he did not heasr. In the eyes of the law only Leha and Taiwo, J delivered the ruling. The signature of Ambursa, J on the ruling was invalid. “The remaining two members of the tribunal who participated in the hearing of the application and delivered opinion therein could not form a quorum in the absence of the chairman who participated in the hearing. The tribunal was not properly constituted for the delivery of the ruling and therefore lacked the competence to do so. “Having found that the ruling delivered on 9/9/2015 was a nullity, it constitutes a good ground for setting aside the entire proceeding before the tribunal.

However, having regard to the fact that this is an election matter, which is sui generis and time bound and the fact that it would not be possible for the parties to return to the tribunal having regard to the provisions of Section 285 (6) & (7) of the 1999 Constitution, I deem it proper, in the interest of justice to consider the appeal on its merit’’, Justice Kekere-Ekun held. On October 6, 2015, the then Cross River State National and State Assembly Election Tribunal Chairman, Justice Christopher Awubra disqualified him after 179 days of sittings, thereby rendering proceedings and judgments of the tribunal invalid. This is just as Justice O. A. Adeniyi, former member who took over him went ahead on October 12, 2015 to deliver judgment on the five cases before the tribunal, saying they were “mere academic exercise” and the People’s Democratic Party (PDP) won in all. Justice Awubra had to disqualify himself following application of Mr. Paul Erokoro (SAN), Counsel to Senator Bassey and PDP in the election petition by Senator Otu of LP, challenging the election of Senator Bassey of the PDP as the winner of the March 28, 2014 Cross River South Senatorial election Erokoro insisted that Justice Awubra’s chairmanship of the tribunal ran contrary to the provisions of the “Schedule 6 of the 1999 constitution which stipulates that the Tribunal chairman should be a sitting High Court judge, ‘’whereas Justice Awubra is a member of a Customary Court of Appeal in Taraba state.” Delivering a judgment on jurisdiction in the case of Senator Otu and Senator Bassey thereafter,  Justice Adeniyi said, Awubra ”not being a judge of a High Court the proceedings of the Tribunal from inception up to October 6 should be set aside…as the law says  that the Chairman of the Tribunal shall be a judge of a High Court.

By virtue of Paragraph 1 (2) and 2 (2) of the Sixth Schedule of the 1999 Constitution, the Chairman and other members of a National Assembly Election Tribunal; and a Governorship and Legislative Houses Election Tribunal shall be appointed by the President of the Court of Appeal Paragraph 1 (2) of the 6th Schedule of the Constitution dictates that ‘’the Chairman shall be a Judge of a High Court and the four other members shall be appointed from among Judges of a High Court, Kadis of a Sharia Court of Appeal, Judges of a Customary Court of Appeal or other members of the judiciary not below the rank of a Chief Magistrate’’ According to Justice Banji Orilonise (Rtd.), in the paper titled, “The Courts and Management of Election Petitions: Challenges, Prospects and Solution” he delivered at a symposium organised by Mustapha Akanbi Foundation July 21, 2010 ‘’One wonders why Kadis of Sharia Courts of Appeal and or Judges of Customary Courts of Appeal and a Chief magistrate should be members of election petition tribunals. A lot of them other than those who have legal qualifications are mere waste pipes at election Tribunals.

As appellate court judges, they are not used to writing court proceedings or taking evidence of witnesses in long hand and they find it difficult to do so. Some of them cannot even make meaningful contributions to discussions on legal issues not to talk of writing rulings. Such that the High Court Judges among them are unnecessarily over-worked’’ “It is my suggestion that the constitution be amended to make the National Assembly Election Tribunals to be chaired by a retired Justice of the Court of Appeal with a retired High Court Judge and a serving High Court Judge as members. All three members must always sit to form a quorum’’, Justice Orilonise said. This is just as it has been argued that the constitution should rather be amended for the duty of composition of the Election Petition Tribunals to be domiciled in the office of the Chief Justice of Nigeria (CJN) The arguments are supported with the facts that when the governorship election petition matters were terminating at the Court of Appeal, lots of miscarriages of justices were recorded. ‘’CJN’s office has greater capacity to constitute tribunal panels with minimal occurrences of these mix-ups and outrageous errors’’.