In The Court of Appeal

(Ibadan Judicial Division)

On Tuesday, the 17th day of March, 2009

Suit No: CA/I/EPT/GOV/53/2008

Before Their Lordships

VICTOR AIMEPOMO O. OMAGE  ....... Justice, Court of Appeal

ABUBAKAR ABDULKADIR JEGA  ....... Justice, Court of Appeal

MOHAMMED LADAN TSAMIYA  ....... Justice, Court of Appeal

RAPHAEL CHIKWE AGBO   ....... Justice, Court of Appeal

BODE RHODES-VIVOUR     ....... Justice, Court of Appeal

Between

1. PRINCE ADEMOLA AYOADE  Appellant

And                        

1. CHRISTOPHER ADEBAYO ALAO AKALA

2. INDEPENDENT NATIONAL ELECTORAL COMMISSION     Respondents

VICTOR A. O. OMAGE, (OFR) (Delivering the Leading Judgment): This is an appeal filed by the Petitioner in the court below against the decision of the Oyo State Governorship and Legislative Election Tribunal. The tribunal sat in Ibadan and delivered its judgment on 17th March 2007. The Petitioner/Appellant had gone to the Tribunal after the decision of the Tribunal and filed this appeal.

The appellant filed his brief on 21/7/2008. The Petitioner/Appellant was sponsored at the election by his National Democratic Party. Independent National Electoral Commission is his 2nd Respondent to this Appeal. The ground of the petition as averred by the appellant in his petition before the Tribunal is that the 1st Respondent - Otunba Christopher Adebayo Alao Akala was at  the time of the election not qualified to contest the election having regards to his indictment by administrative panel of Inquiry set by the Oyo State Government and the subsequent acceptance of the indictment by the Oyo State Government.

The 1st Respondent and 2nd Respondent filed response to the averment and the matter went to trial. The Court below delivered its judgment against the appellant who now appealed to this Court.

The facts in the record show that the 1st Respondent explained that the making of his instrument on what the 1st Respondent was said to be indicted was actuated by the malice of the former Governor of Oyo State. That the Gazette indicting him was designed to frustrate the former Governor from contesting the election on the aegis of the People Democratic Party in the election of April, 2007. The 1st Respondent deposed that the indictment against him was set aside by an Order of the Federal High Court of Oyo State in Plaint No. M/26/2007; and consequently at the time of the election in April, 2007, he was in Court challenging the indictment in Court. The 1st Respondent claimed therefore that he was competent and qualified to contest the election on 14th April, 2007. The 2nd Respondent INEC brief dated 7/6/2007, and therein acknowledged the right and capacity of the 1st Respondent to contest the election of 14/4/2007; and the 1st Respondent did.

In the course of the proceedings before the Tribunal below the Chairman of the Tribunal Justice S. D. Bage was elevated to Court of Appeal and he left the Tribunal. Judgment of the Tribunal was delivered on 17th March, 2008, and the Tribunal dismissed the petition of the appellant.

In his submission in the Court below, the Appellant, said another Chairman was not appointed to head the members of the panel afresh and to hear complaints in the petition afresh. A four-man panel thus delivered judgment against the new Petitioner/appellant. The ground of dismissal of the 1st respondent's petition was that it was done by an administrative panel, which was accepted by the State Government. However, it is said that the provision of Section 182 of the 1999 Constitution make conviction by administrative panel, sufficient to disqualify the 1st Respondent from contesting an election. The Tribunal ruled that for an order of indictment to affect, the 1st Respondent he had to be prosecuted and convicted in a proper Court of law. The Petitioner was dissatisfied with the decision given on 14th April, 2007, The Petitioner/Appellant filed this appeal, and formulated the following issues in his brief for determination of the appeal. 

"1. Whether having regard to the relevant provision of the Constitution and the Electoral Act the remaining four members of the tribunal had the jurisdiction and power to continue the proceedings after the Chairman had ceased to be a member/Chairman of the Tribunal.

2. Whether the tribunal was correct in holding that the 1st Respondent was at the time of the election qualified or not disqualified to contest the election."

The appellant formulated in his brief of arguments and submissions which will be treated presently.

By leave of Court, the 2nd Respondent filed the 2nd Respondent briefs. In the brief, The 2nd Respondent (INEC) formulated the issues for determination of the appeal as follows:-

"(1) Whether the election tribunal was validly constituted up till the time of the judgment. Grounds 1 and 2 of his grounds of appeal.

(2) And whether the election tribunal was not right in holding that the 1st Respondent was qualified to contest the election of the Governor of Oyo State at the time of the election, grounds 3 and 4 of this appeal."

In his brief of argument the 1st Respondent formulated two issues for determination of the appeal from the four grounds of appeal raised by the Appellant. They are: -

"(1) Whether the election tribunal was validly constituted up to the time of judgment and whether there was any feature that robbed it (sic) (the court) jurisdiction covers ground 1 and 2, ground of appeal.

(2) Whether the lower court was wrong in holding that the 1st Respondent was qualified to contest the 14th April, 2007 general election'?"

The issues raised by the Appellant in his brief referred to earlier appear to me to be direct questions, which the 1st and 2nd Respondents have made direct responses to. In the event it seems to me that a comprehensive approach to the question and answer require that they be treated together. In the event, I proceed now to present the argument and submissions of the Appellant and supply an adequate response from respondents and my opinion. It is the submission of the appellant that the lower Tribunal was in error at law to carry on with the proceedings in the petition, and deliver thereon a judgment of the Tribunal when the erstwhile Chairman of the Tribunal had withdrawn from sitting with the members of the panel, leaving only four, members, and the law in the Constitution prescribes a sitting of 5 members including the Chairman. See the provision of Section 285(3) of the 1999 Constitution and paragraph 2(1) sixth schedule to the 1999 Constitution under which the panel hearing the petition was constituted. It provides for Tribunal to consist of Chairman and four members. The Appellant submitted that as the panel constituted to hear the correct petition is made up of four members including the Chairman, the withdrawal of the Chairman upon the elevation of the chairman Hon. Justice S. D. Bage to the Court of Appeal, the existing panel was improperly constituted and at variance with the provision of the 2006 Electoral Act, See 24(2) 1st Schedule which reads thus:-

"If the Chairman of the Tribunal, or Presiding Justices of the Court who begins the hearing of an election petition is disabled by illness or otherwise, the hearing may be recommended and  concluded by another Chairman of the Tribunal or Presiding Justice of the Court appointed by the appropriate authority." The provisions of Section 24(2) of the 1st Schedule quoted in the Appellants' brief appear to have suo motu substituted the word "recommenced" for recommended contained in the Act though the word recommenced made sense in the passage the word used in the Electoral Act. 2006 is recommended not recommenced. The copy supplied by the Court of Appeal to its library does not contain the word recommence in the passage however, relying on the provision above, of the Nigeria Constitution and the Electoral Act, 2006, the appellant submitted that the four other members of the Tribunal after the departure of the Chairman Hon, Justice S. D. Bage lacks the power and jurisdiction to continue to adjudicate and hear the petition on the departure of the Chairman; but the law prescribe that the Tribunal should "recommenced" when a Chairman of the panel departs the panel due to illness or otherwise.

Consequently, the instant Oyo State Government and Legislative House Election Tribunal which proceeded with the hearing of the petition after the departure of the Chairman and delivered the judgment of the Tribunal is incompetent. Its decision he said is null and void. The Petitioner argued and submitted that the Oyo State Governorship and Legislative House Election Tribunal is defective because it is not properly constituted as regards the requirement of number of the members of the panel. The Petitioner/Appellant cited the case of MADUKOLU VS. NKEMDILIM (1962) per Bairemon J. as reported in 2001 46 WRN (reprint).

In the event the Appellant submitted that the decision of the said Tribunal is a nullity, however, well conducted. He urged the Court to dismiss the decision of the Tribunal. The response of the 1st Respondent and the 2nd Respondent to the Appellant's issue one are the same in this appeal. I will therefore consider the two responses together in this judgment. Both Respondents ask on issue one whether the election Tribunal was validly constituted up to the time the judgment was delivered, and whether (a) there exists any feature which robbed the said Tribunal of any (b) jurisdiction to deny its judgment of any validity and (e) whether the said Tribunal did not form a quorum under the law.

The two sets of Respondents in their separate response submitted in answer to the issue 1 raised by the Appellant submitted as follows: -

(1) That the requirements of the 1999 Constitution in Section 285 sub-section 4 on the quorum of an election Tribunal established under the 1999 Constitution is as follows: "a Chairman and two other members form a quorum".

In the instant complaint; the Constitution Section 24(2) of the 1st Schedule to the Electoral Act, 2006, made pursuant to Section 151 of the Electoral Act subscribes thus - "If the Chairman of the Tribunal or the Presiding Justice of the Court who begins the hearing of an election petition is disabled by illness or otherwise, the hearing may be "recommended", (not recommenced as the appellant has supplied and interpreted)" and concluded by another Chairman of the Tribunal or Presiding Justice of the Court appointed by the appropriate authority". In the instant appeal the provisions of the Constitution of Nigeria in Section 285(2) gives to a well constituted Tribunal jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of the Governor or Deputy Governor or as a member of any Legislative House. However, paragraph 2 of the sixth Schedule to the 1999 Constitution made under Section 285 of the Constitution prescribe that the membership of the Tribunal shall consist of Chairman and four members however, the quorum for sitting of the panel shall under Section 285(4) shall be the Chairman and two other members making 3. In the instant appeal, the Hon. Justice S. D. Bage, who was the chairman of the Tribunal, was elevated to the Court of Appeal. Justice Bage therefore ceased to be eligible to sit on the panel; he therefore ceased to attend the sitting of the panel as the Chairman.

On the occurrence of this event, the other member in adherence to the provisions of Sub-section 4 of Section 285 of the 1999 Constitution continued to have a quorum to sit on the Appellants' petition when the enabling power; the President of the Court of Appeal of Nigeria appointed as Chairman of the panel one of the existing members of the panel Hon, Justice Tami Yusuf Hassan. The panel and quorum under the law is thus fully constituted thus, Justice Tami Yusuf Hassan, Justice P. O. Nnadi, Justice Y. A. Bashir and Justice E.O. Ahamioje. Justice Tami Yusuf Hassan had been a member of the panel from the onset, and recommenced of the sitting of the Tribunal and there was no need to reconstitute the panel which formed a quorum under the provisions of Section 285(4) to the sixth schedule of the 1999 Constitution.

The two Respondents submit that the provisions of the law is clear and unambiguous. The Appellant is mistaken about the provision of the law and confused about quorum of member which make up the quorum of the panel. A quorum of the said Tribunal was properly formed upon the appointment of a new Chairman in Hon. Justice Tami Yusuf Hassan, Thus, the quorum was formed of one Chairman and two members of the panel. Nothing is amiss.

The two Respondents submit that throughout the proceedings the Appellant and counsel were in Court and they appear before the Tribunal with the appointed Chairman. They did not raise any objection to the Constitution of the panel at the time, it is therefore late to raise objection to the panel after they had willingly submitted to the regularity and jurisdiction of the panel. The Respondents refers to V. S. STEEL NIGERIA LTD. VS. GOVERNMENT OF ANAMBRA STATE (2001) 8 NWLR (PART 715) 454. Therefore, when during the hearing of the petition, the Appellant failed to raise the issue of the composition of the panel, the petitioner cannot now raise the issue of alleged unconstitutionality of the panel to which the appellant had submitted. The appellant should not be allowed to raise the complaint as a new issue on appeal. They refer to NETUPO VS. OMOLORIM. (2005) 12 NWLR (Part 25) para. 1 - 16. The two Respondents, 1st and 2nd Respondents submit that the Court should resolve the issue against the Petitioner/Appellant.

My Lords, two errors are apparent in the submission of the Petitioner/appellant, which may have been responsible for the wrong interpretation of the law on the quorum of the panel on the Governorship election. The first error is on the provision in Section 24(1) of the 1st schedule to the Electoral law which uses the word may be recommended. The second error is recommended, which the appellant interpreted to read recommence. The provision of Section 24(2) of the Electoral Law is as follows: -

"If the Chairman of the Tribunal or the Presiding Justice of the Court who begins the hearing of an election is disabled by illness or otherwise, the hearing may be recommended and concluded by another Chairman of the Tribunal or presiding Justice of the Court of Appeal by the appropriate authority."

The word may used in the law does not have the compelling authority of the word shall; whatever the word "recommended" mean in the statute.

It however, does not say recommence, which the Appellant supplied in substitute. In any case, the quorum of Chairman and two (2) other members required under Section 285(4) of the 1999 Constitution for a Tribunal created under the Constitution has not been breached, even if where same Constitution provides for a five member panel for the Governorship Tribunal. See Section 285(2) of the 1999 Constitution. The effect of the two provisions of the Constitution is not contradictory it only provides two cadres of eligibility for membership of a panel. The quorum is well formed with the appointment as Chairman of the panel of Justice Tami Yusuf Hassan. The panel which sat on the petition and delivered judgment thereon is valid and competent. The situation of incomplete panel pointed in the submission of the Appellant does not arise, and the authority of MADUKOLU VS. NKEMDILIM is inappropriate. The issue fails. I therefore resolve issue one in favour of the 1st and 2nd Respondents against the Petitioner/Appellant.

The second issue for determination raised by the Appellant is "whether the Tribunal was correct in holding that the 1st Respondent was at the time of the election qualified or not disqualified to contest the election to the office of Governor of Oyo State."

  In his submission on the issue as to whether or not the 1st Respondent was qualified to stand election as a Governor of Oyo State, when the 1st Respondent has been indicted for embezzlement or fraud following an administrative panel of enquiry set up by the State Government which indictment he submitted has been accepted by the State Government. By the indictment referred to therefore, exhibit PE 1, which was arrived at by an administrative panel and accepted by the State Government of Oyo State by 1st Respondent is disabled from contesting the election. The legality of exhibit PE 1, rests on the provision of Section 182(1) of the Constitution of Nigeria which provides thus: "No person shall be qualified for an election to the office of Governor of a State if he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an administrative panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry law or any other law by the Federal or State Government, which indictment has been accepted by the Federal or State Government".

It is the submission of the Appellant that in the instant case, the indictment of the 1st Respondent, disqualify him from contesting for election as a Governor of Oyo State or any other part of Nigeria, therefore the success of 1st Respondent at the election if at all would be futile as the 1st Respondent did not qualify to stand for election under Section 182(1) of the 1999 Constitution. The Appellant cited the pronouncement and interpretation of the Section by the Supreme Court in ROTIMI AMAECHI VS. INEC (2008) ALL FWLR (Part 407) (1) and submits that it provides no

precedent. The appellant submitted that the Court of Appeal and other courts including the present Tribunal felt bound by it. It is for this reason the Appellant submitted and said that the election Tribunal was in error to accept the decision in Amaechi's case. He seeks the ruling of the Court on Appeal on the matter.

The Appellant in order to prove his claim cited the following from the decision of the Tribunal viz:-

"It will be in consonance with the doctrine of stare decisis for this Tribunal to tow and follow the decision of the Court of Appeal in IDRIS VS. ANPP (2008) 8 NWLR (Part 1088) 1 at 71 where Omage, JCA which decision apart from being recent in time aligned with the Supreme Court decision in AMAECHI VS. INEC (supra). In it Oguntade JSC commented thus: "It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given a fair trial before a court. A Judicial Commission of enquiry or an administrative panel is not a thing as a Court of law or its equivalence. Because a court operates within a judicial hierarchy, any person wrongly convicted is enabled to contest his conviction up to the Supreme Court of Nigeria. This is a right granted by the Constitution of Nigeria. It has not been curtailed or abudged by Section 182(1) of the Constitution. Section 182 of the Constitution only enables a Judicial Commission of Inquiry or Administrative Panel to determine the culpability of a citizen where it is alleged that such a citizen has been in breach of a standard of behavior expected in public life. Where such enquiry or Tribunal finds a citizen liable or culpable of conduct bordering on an offence and the Federal or State Government accepts such a report through a published white paper; it is still not good enough to deny a citizen eligibility to the office of Governor unless and until he is afterward prosecuted in a Court of Law and found guilty."

The Appellant submitted that the provision of Section 182(1) without the interpretation above, occurs in Section 66(1) (b) of the same 1999 Constitution. My Lords, despite the lucid and attractive reasoning contained in the interpretation of 182(1) and the expression of the Supreme Court in AMAECHI VS. INEC; (supra) the appellant submitted that the Tribunal was in error for towing the opinion expressed in AMAECHI's case. It is the submission of the Appellant that what is pronounced by the Supreme Court in relation to Section 182(1) in AMAECHI's case is an opinion not a stare decisis on the substance of the case before the Court. The Appellants submitted that the decision in Amaechi's case proceeded on erroneous assumption that the administrative Panel whose duty was to investigate the allegation against the 1st Respondent and make recommendation which may be accepted or rejected by Government is actually to pronounce the 1st Respondent guilty of a crime, that is not the case he said. Appellant's Counsel submitted that indictment in the event is different from proceedings in a trial. He said had the Supreme Court received a full dressed address on the provisions of Section 182(1), the obiter would have been different. He submitted that the Tribunal below was in error to have followed the obiter in Amaechi's case, and urged the Court to accept his submission and hold otherwise. Particularly as the Supreme Court possesses no jurisdiction on electoral matter. The obiter the Supreme Court is not on the ratio decidendi before the Supreme Court, it should not therefore be followed.

In response to the several submissions made by the Appellant on the right of administrative Tribunal to pronounce on the culpability of the 1st Respondent which can deny the 1st Respondent of the right to contest his election, the 1st and 2nd Respondents refer to Section 137(1) of the Nigeria 1999 Constitution which reads: -

"In the determination of his civil rights and obligation including any question or determination by or against any Government or Authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such sense as to secure its independence."

Section 36(5), also provides that any person who is charged with a criminal offence shall be presumed to be innocent. 1st Respondent submits that the presumption of guilt which matures into a penalty for deprivation of a right to contest election as a Governor, or a decision which proceeds from the Administrative Inquiry is clearly in breach of the provisions of Section 36(1) of the 1999 Constitution of Nigeria. As Section 182(1) of the Constitution is definite about the person indicted, who may not also contest the election clearly an indictment in the even exceeds the presumption of guilt, and amounts to a conviction which only a Court of law can impose - See Sub-section 5 of Section 36 of the 1999 Constitution of Nigeria. Therefore a failure to follow the direction of Justice Oguntade in AMAECHI VS. INEC (supra) on the form of trial which can so disqualify a citizen of Nigeria from the eligibility to a civil right is a breach of the provision of Section 36(5) of the Constitution. The possibility of this occurring is why the obiter in AMAECHI VS. INEC is a proper guidance for the observation of the law, to wit, only a competent Court of Law, within the hierarchy of the Court can properly try and convict a citizen of the country for the conviction to have the effect of depriving the citizen of a right to contest a Governorship election.

The obiter should also apply in Section 66 of the Constitution where non-judicial body within the hierarchy of Court is invested with a duty to make pronouncements which would deny a citizen of a right under the Constitution. The 1st Respondent urged the Court to follow the direction of Oguntade JSC in AMAECHI VS. INEC, as the reasoning is good law. In his submission the 2nd Respondent said that the decision of the Supreme Court in BUHARI VS. INDEPENDENT ELECTORAL COMMISSION (2008) 4 NWLR 546 at 613-614 per H.F. and ACTION CONGRESS VS. INEC (2007) 12 NWLR (Part 1048) 220 per Mustapha, JSC said thus: "The indictment of embezzlement against a person to deprive him of a right granted by Section 131 of the contest or view for the president of the Republic is a very serious matter, and the issue can only be pronounced upon by the judicial branch. Such serious issues are riddled with complex questions of law and fact which are by the provisions of the Constitution are the preserve of the judiciary etc". 2nd Respondent also urged the Court to uphold the interpretation of Section 1982(1)(sic) of the Constitution.

My Lords, the issue to be determined on issue 2 of the Appellant's brief clearly is on the inadequacy of the understanding of the law by the Appellant who submitted that the decision of the Supreme Court, even in an obiter dictum is not binding on other Court of laws jurisdiction in Nigeria. My Lords, it is grievous and painful to read in a submission of a Nigeria lawyer that he is not aware of the provisions of Section 287(1) of Nigeria 1999 Constitution which reads: -

"The decision of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Supreme Court."

Every decision of any constituted Court of law is an opinion. Other people may have different opinion but their opinion is not invested with judicial authority as those of the Court of law.

The learned counsel for the Appellant has tried in his submission to distinguish and separate the decision of the Supreme Court from the obiter dictum. The issue which arises immediately is whether the learned counsel has the vires to separate the decision from the obiter and get a complete decision of the Supreme court on the issue of the interpretation of section 182(1)(i) of the Constitution. I believe no such power exists in the counsel.

Allowing for the misguided intellectual fervour of the counsel in separating the obiter from the ratio decidendi of the Supreme Court on an issue of fact when the obiter of the Supreme court is on the interpretation of the law; it is not only the Constitutional provision that render such interpretation binding, the natural notional inclination of a lawyer for respect for a Court of superior jurisdiction require in the heart of a learned lawyer, compels immediate reverence for the pronouncement of the Supreme court even if he is liable to disagree. It is for this reason that the Court of Appeal in resolving a similar issue against the Respondent in IDRIS VS. ANPP (2008) 8 NWLR (Part 1058) wrote thus:-

"In the latest interpretation of the law on Section 182(1) from a non superior court of record, the Supreme Court or any other Court of law or Tribunal which rules contrary to it, rules to its peril if it ignores the latest interpretation of the law."

The above arose in comparison with an earlier conflicting ruling on the same law by the Court of Appeal in AC VS. INEC (2007) 12 NWLR (part 1048) 22. The interpretation of Section l82(1) adopted by the Tribunal that the Administrative Inquiry which seem to abridge the right of a citizen by indicting the citizen into the resulted effect of removing the citizen's right to contest elections as Governor of Oyo State is unacceptable and against the law. The Tribunal is therefore correct to adopt the interpretation given by the Supreme Court in AMAECHI VS. INEC (supra). Consequently, the 1st Respondent was not barred from contesting the election by report of Administrative Tribunal accepted by the State Government. The 1st Respondent was therefore eligible and competent to contest the election for the Governorship seat in Oyo State. The second issue also fails.

I resolve the second issue in favour of the 1st and 2nd Respondents against the Appellant. In sum, the appeal fails entirely.

It is therefore dismissed. There will be costs of Ten Thousand Naira (N10,000.00) in favour of the 1st and other Respondents respectively.

ABUBAKAR ABDULKADIR JEGA, J.C.A.: I agree.

MOHAMMED LADAN TSAMIYA, J.C.A.: I agree.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

BODE RHODES-VIVOUR. J.C.A.: I agree.

Appearances

Oluwole Aina Esq., with E. A. Imomoh Esq. and Kazeem Gbadamosi Esq.       For the Appelants

L. O. Fagbemi, SAN, Prof. Taiwo Osipitan, SAN, N. O. O. Oke, SAN,

Chief R. A. Ogunwole, SAN, Prof. O. Oyewo, S. A. Onifade Esq.,

Aare I. Abdulsalam Esq., Dr. Akin Onigbinde, K.W. Bankole Esq.,

Abiodun Ogunjimi Esq., K. Akinwumi Esq., H. O. Afolabi Esq.,

S. Adewoye Esq., L. A. Adedigba Esq., L. L. Akanbi Esq., Tayo Ojo Esq.,

Segun Adebayo Esq., R. Isamotu Esq., W. A. Ogunfolabi Esq., M. L. Oyekanmi Esq.,

A. T. Adebayo Esq., W. A. Olajide Esq., Biodun Adeleke Esq.

R. O. Yusuf Esq. with Adewale Akande Esq., Olukayode Akaode Esq     For the Respondents