➥ CASE SUMMARY OF:
Alliance For Democracy v Fayose (2004) – CA
by Branham Chima (SAL).
Court of Appeal – CA/IL/EP/GOV/1/2004
➥ JUDGEMENT DELIVERED ON:
➥ AREA(S) OF LAW
Immunity clause in respect of election petition.
➥ PRINCIPLES OF LAW
⦿ THERE WILL BE NO REFERENCE TO THE SUPREME COURT WHEN THERE IS A CASE LAW ON THE POINT
With this principal issue resolved in favour of the appellant, the motion filed herein for reference to the Supreme Court becomes irrelevant. This is because from the argument of all learned counsel to the parties, reference to the Supreme Court can only be made by the Court of Appeal to the Supreme Court under section 295(3) of the 1999 Constitution, if there have been no guidance from the apex court on the point. This is not the position in the instant case where this point sought to be referred to the Supreme Court – the application of immunity by the principal officers named in S.308 of the 1999 Constitution in election petition matters – had been resolved by the Supreme Court in the Obih v. Mbakwe and Unongo v. Aper Aku set of cases cited by the appellants counsel supra. In the light of these authorities, I hold that this is not a point for reference for clarification to the Supreme Court as the apex court had done the necessary clarification. In consequence application dated 17/12/03 and filed on 18/12/03 is hereby dismissed. — M.A. Okunola, JCA.
⦿ RATIONALE BEHIND WHY A GOVERNOR IS NOT IMMUNED FROM ELECTION PETITION
I am also of the view that the appeal can be allowed on the main issue of immunity of the governor under the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999. The issue can be resolved by a simple question as to whether a person declared and sworn-in as the governor elect can be sued by appropriate party to challenge the declaration. By law the answer must be in the positive. If the said person is said to be immuned under the section the resultant effect is that once a person is declared and sworn – in as governor elect that ends the matter, no one can complain or take any legal action even if the person conducted any gross election malpractice. This will encourage gross wrongful and illegal activities among the parties contesting for the position. This would undoubtedly negate the necessary intendment of our constitution and would destroy the democracy itself. In election petition where the status of the governor is being challenged, as in this, then the said immunity is also questioned. He has no immunity against being sued and consequently he cannot be immuned from being subpoened. It must be made clear that the provisions of section 308 of the Constitution are applicable to ordinary civil proceedings as in the case of Tinubu v. I.M.B. Securities Limited (supra) and criminal proceedings and not in election related matter as in Obih v. Mbakwe (supra) and our present case. In my judgment the appeal is to be allowed on this issue. It is allowed with an order that the matter be remitted for fresh trial by a tribunal of different membership. — Ja’ Afaru Mika’ilu, J.C.A.
⦿ IMMUNITY – CONSTITUTION MUST BE INTERPRETED ACCORDING TO ITS SPIRIT AND INTENTION OF THE FRAMERS
To hold that the governor is immune in such proceedings is to go counter to the spirit and intent of our Constitution. This standpoint is better appreciated when one envisages a situation where a person is sworn in as a governor, but is later discovered to be a person of questionable character who won the election with doubtful papers, if he is immune, it would mean that an election tribunal provided for under the Constitution, will not be able to question his election and do something about it through the judicial process. In other words, the Constitution would have acted in vain in setting up election Tribunals. That cannot be so. The Constitution is the highest law of the land, and its interpretation must accord with the letter and spirit of the Constitution to reflect the intention of the framers, particularly in a democracy such as ours where election matters have taken on the hue of a do or die affair. It is in the light of this that I uphold the submissions of the appellant that election petitions being a special proceedings, a governor or any occupant of that office mentioned in section 308 of the 1999 Constitution does not enjoy immunity when it comes to an election petition, which seeks for the determination of his election. — A. Augie, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Muritala Aremu Okunola, J.C.A.
⦿ FOR THE APPELLANT
Mr. L.O. Fagbemi, SAN.
⦿ FOR THE RESPONDENT
Mr. Yusuf Ali, SAN.
➥ CASE FACT/HISTORY
This is an appeal against the ruling of the National Assembly Governorship and Legislature House Election Petition Tribunal (hereinafter referred to as the tribunal) holden at Ekiti on 20th November, 2003, wherein the tribunal ruled in favour of the respondents.
The facts of this case briefly put were as follows: the petitioner/appellant herein, the Alliance for Democracy Ekiti State Chapter, a registered political party in Nigeria participated in the election of 12th day of April, 2003 and claimed that the 1st respondent herein was not qualified to contest for the election. The appellant requested that 1st respondent should be subpoenaed to produce his credentials and international passport. The petitioner issued a subpoena duces tecum on the 1st respondent to appear before the tribunal with notice to produce dated 20/11/03. The 1st respondent filed a notice of objection dated 26/11/03 and re-notice to produce international passport dated 26/11/03 on the grounds of incompetence, lack of jurisdiction, nullity and unconstitutionality. After hearing the submissions of all learned counsel to the parties on this objection the tribunal delivered a well considered ruling on 29/11/03 in favour of the respondents.
Dissatisfied with this ruling, the appellant herein has appealed to this court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether section 308 of 1999 Constitution confers any immunity on an incumbent governor: (a) from being sued and from being issued or served with certain court processes; (b) extends beyond civil and criminal matters to cover election petitions and whether their Lordships of the lower tribunal ought not to have followed laid down decision that the immunity under reference is not applicable in election petition matter?
RULING: IN APPELLANT’S FAVOUR.
A. A GOVERNOR IS NOT IMMUNED FROM ELECTION PETITION SUITS
“The apex court resolved the above poser in the following terms per Bello, CJN in Obih v. Mbakwe (1984) 1 SCNLR 192; 15 NSCC 127 at pages 130 line 40 to the end and page 131 lines 1-2 thus: “In the same vein as in the former Constitutions, the 1979 Constitution made special provisions for the jurisdictions of the courts to hear and determine election petitions at the first instance and on appeal Section 236 of the Constitution conferred on the High Court of a State unlimited jurisdiction to hear and determine any civil or criminal proceedings subject to the provisions of the Constitution. Section 237 then conferred jurisdiction on the competent High Court to deal with election petitions. The same distinction was manifested in the appellate jurisdictions of the Federal Court of Appeal and of this court. While appeals as of right were covered by section 220(1) (a) – (e) and section 213(2) (a) – (d) in the Federal Court of Appeal and in this court respectively, section 220(1)(f) and section 213(2)(e) conferred the right of appeal to the Federal Court of Appeal and to this court in respect of election petitions. From the provisions of the Constitution referred to above, I am of the opinion that election petitions were special proceedings completely divorced and separated from civil proceedings within the context of section 267 of the Constitution and consequently a Governor is not immune from legal proceedings against him in respect of an election petition.””
“The immunity provided by the provisions of section 308 of the Constitution of the Federal Republic of Nigeria 1999 on a State Governor is put in abeyance when his election is been disputed before an election Tribunal as to make him amenable to being compelled by a subpoena to tender document(s) or give evidence before the election Tribunal. No order is made as to costs. Each party shall bear its own costs.”
“From the foregoing authority, this principal issue is resolved in favour of the appellant. In sum, this appeal succeeds on the principal issue and it is allowed. The ruling of the lower tribunal is hereby set aside. The case is hereby remitted back for retrial by a new panel in the lower tribunal to be reconstituted by the President of the Court of Appeal.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)