➥ CASE SUMMARY OF:
Wike Nyesom v. Peterside, APC, INEC, PDP (SC. 718/2015, 27 Oct 2015)
by Branham Chima.
➥ SUBJECT MATTER
Location of election tribunal;
Doctrine of necessity;
Constitution of election tribunal;
➥ CASE FACT/HISTORY
The facts which gave rise to this appeal, as could be gathered from the record of appeal, can be summarised as follows: The appellant herein contested election into the office of Governor of Rivers State held on 11 and 12 April 2015, having been sponsored by his party, the Peoples Democratic Party (PDP), which is the 4th respondent in this appeal. The 1st respondent herein, also contested election for the same office on the platform of his party, the All Progressive Congress (APC), which is the 2nd respondent in this appeal. After the election, the 3rd respondent, INEC, which is the statutory body saddled with the responsibility of conducting the same election in Rivers State and in some states in Nigeria, returned and declared the appellant winner of the election, having scored the highest number of votes cast at the said election over and above the scores of the other contestants. Aggrieved by the declaration of result and return of the appellant as winner of the election, the first and second respondents herein jointly filed an election petition on 3 May 2015 at the Rivers State Governorship Election Tribunal (hereinafter referred A to as “the tribunal”) sitting in Abuja, praying for the nullification of the election and urged it to order the conduct of fresh election into the said office. On being served with the petitioners’ petition, the appellant, as 2nd respondent at the tribunal, filed a notice of preliminary objection on 4 June 2015, challenging the competence of the tribunal and its jurisdiction to entertain same and at the same time, he filed his reply to the petitioners’ petition.
On 22 July 2015, the tribunal took arguments of learned senior counsel to the parties on the preliminary objection and the motion and later on 29 July 2015, it delivered its considered ruling in which it held A inter alia , that it (tribunal) was properly constituted by the Hon. President of the Court of Appeal even without her having consultation with the Chief Judge of Rivers State or the President of the Customary Court of Appeal of Rivers State. It further held that it had jurisdiction to sit, hear and determine the election petition relating to Rivers State Governorship Election in Abuja.
The appellant became disenchanted with the ruling of the tribunal, hence he decided to appeal to the Court of Appeal (the lower court or “court below”) vide a notice of appeal dated 1 August 2015, containing eleven (11) grounds of appeal. Briefs of argument were filed and exchanged by parties’ learned counsel at the lower court in accordance with the rules and practice of that court. The appellant filed his brief on 14th August 2015, while the 1st and 2nd respondents upon being served with the appellant’s brief, also filed their joint brief of argument on 18 August 2015. It is worthy of note, that in their joint brief of argument filed at the lower court, the 1st and 2nd respondents herein also argued a preliminary objection to the hearing of the appeal. Upon being served with the 1st and 2nd respondents’ joint brief of argument containing the preliminary objection, the appellant decided to file an appellant’s reply brief on 24 August 2015. On 24 August 2015, the learned justices of the Court of Appeal heard the appeal and the preliminary objection argued in the two respondents’joint brief together and later on Saturday, 5 September 2015, delivered their considered judgement dismissing the preliminary objection of the 1st and 2nd respondents. With regard to the appeal before it, the lower court allowed it in part, to the extent that the requirement by section 285(2) and paragraph 3 of the Sixth Schedule to the 1999 Constitution (as mended), for consultation with the Chief Judge or President of the Customary Court of Appeal by the Honourable President of the Court of Appeal is not mandatory, especially where the Chief Judge and the President of the Customary Court of Appeal was not in existence in Rivers State at that time.
In compliance with the practice and rules of this court, the appellant filed his brief of argument on 30 September 2015.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether upon a proper interpretation of the provisions of section 285(2) of the 1999 Constitution (as amended), paragraph 1(1) and (3) of the Sixth Schedule thereto and paragraph 20(2) of the First Schedule to the Electoral Act, 2010 (as amended) and the decisions in Ibori v. Ogboru (2005) 6 NWLR (Pt. 920) 102 and Ogboru v. President of the Court of Appeal (2007) All FWLR (Pt 369) 1221, the Court of Appeal was justified in its conclusion that the Rivers State Governorship Election Petition Tribunal sitting in Abuja was properly constituted and had jurisdiction to entertain the governorship election petition emanating from Rivers State?
RESOLUTION: IN RESPONDENTS’ FAVOUR (the election petition tribunal is properly constituted and has jurisdiction)
[THE TRIBUNAL IS ALREADY ESTABLISHED BY THE CONSTITUTION; IT IS NOT FUTURISTIC
‘The lower court in its wisdom, having been confronted with the interpretation of section 285(2) of the 1999 Constitution which is similar to the provisions of section 179 of the 1979 Constitution, held at page 797 of the record as follows:- “Now, section 285(2) of the Constitution 1999 (as amended) states: ‘… The Constitution in section 285(2) as above has already provided and established the election petition tribunals for each state and so, no law is required to be enacted to establish the tribunals. It is not a futuristic provision. It is only the chairman and members of the tribunals who could adjudicate, that are to be appointed by the President of the Court of Appeal as provided in paragraph A1(3) of the Sixth Schedule to the 1999 Constitution (as amended). That is the futuristic event aiming after the establishment of the tribunals by the Constitution’ … The Tribunal has been established and no future act is required to establish it, we hold therefore that the election petition tribunals had been established by the Constitution. The President of the Court of Appeal did not establish them and cannot also do away with them”. I think this is a sound and far-reaching finding by the lower court, which cannot be faulted or assailed. I entirely agree with the lower court in that regard.’
THE REQUIREMENT OF CONSULTATION CANNOT BE MET AS THE SAID OFFICES ARE VACANT
‘Here, the appellant conceded and rightly too, that the offices of the Chief Judge and President of the Customary Court of Appeal were vacant in Rivers State or to put it in another way, none of them was in existence as at the time the Court of Appeal President constituted or empanelled the tribunal and therefore, there was no how the requirement of consultation contemplated by paragraph (3) of the Sixth Schedule to the 1999 Constitution could be met.’
THE CONSULTATION WITH THE CHIEF JUDGE OF RIVERS STATE AND THE PRESIDENT OF THE CUSTOMARY COURT OF APPEAL IS NOT A CONDITION PRECEDENT
‘The question that may be asked is, ‘is consultation with either of the two functionaries by the President of Court of Appeal a pre-condition for constituting, appointing or empaneling the tribunal? I do not think so. In the first place, in the present scenario, the said two functionaries were not available in Rivers State. Is it wise or proper for the President of the Court of Appeal to refuse or neglect to appoint any Judge from Rivers State to serve in any election tribunals? It is noted by me that in his brief of argument, the appellant’s senior counsel expressed the view that for proper constitution of the tribunal, the Chief Judge of Rivers State or the President of the Customary Court of Appeal ought to have been consulted. I think the learned silk for the appellant missed the point or has misconstrued the provisions of paragraph 1(3) of the Sixth Schedule to the 1999 Constitution. As I understand it, the purpose of consultation with the two functionaries was/is not to appoint this particular tribunal whose jurisdiction he is challenging. Rather, the consultation with either of the two functionaries by the President of the Court of Appeal was simply to get some eligible Justices/Chief Magistrates who are fit and proper from Rivers State and who are indigenes of that State, to serve in election tribunals any where in the country and NOT necessarily in Rivers State. Afterall, it may not even be feasible that judges (who are indigenes) of Rivers States would be appointed by the President of the Court of Appeal and be deployed to serve in Rivers State, their States of origin to determine election petitions filed from Rivers State. Even in the absence of the Chief Judge or President of the Customary Court of Appeal, for her to consult, that will not prevent the President of the Court of Appeal from appointing suitable and competent A Justices/Chief Magistrates from that State to serve in tribunals in the country, as it will amount to injustice to exempt or exclude indigenes of Rivers State from participating in on going petition hearing exercise which is a national service. It will therefore be absurd if she excluded them.’
THERE IS INSECURITY IN THE RIVERS STATE THUS WARRANTING THE SHIFT IN LOCATION OF THE TRIBUNAL TO ABUJA
‘It is noteworthy that at the tribunal, the present respondents relied on the doctrine of necessity while opposing the application by the appellant, especially on the relocation of the tribunal to Abuja. The 1st and 2nd respondents relied on the said doctrine, as a ground of objection of the appellants to challenging the jurisdiction of the tribunal (see page 627 of the record). The learned silk for the two respondents also specifically relied on and argued that the doctrine of necessity is applicable in this instant case and stated that the doctrine was not raised by learned counsel in Ibori’s case and he therefore cited that reason as another distinguishing factor between the cases of Ibori v. Ogboru and Ogboru v. President of the Court of Appeal with regard to the issue of relocation of the tribunal to Abuja. Apparently, the tribunal had alluded to the issue of insecurity oreven the doctrine of necessity as a ground or one of the grounds that informed the President of the Court of Appeal to relocate the tribunal to Abuja. Similarly, the court below had also accepted and relied on the doctrine of necessity as a ground to justify the relocation of the tribunal to Abuja when on page 801 of the record, it held in its judgement as follows:- “The respondents have referred to the doctrine of necessity as the justification for the relocation of the tribunals to Abuja to sit . We agree. It is surprising to say the least, to argue that since there was a security situation in Rivers State, the President of the Court of Appeal should not have constituted the tribunal. If that scenario had been followed by the President of the Court of Appeal, where would those aggrieved by the result of the election ventilate their grouse?” There is no gainsaying, that the above findings of the lower court is far-reaching as it touches deeply on one of the main grouses in the appellant’s application at the tribunal regarding relocation. It is in fact the gravamen of his application and by extension, of his appeal to the lower court and even to this court. In a nutshell, the lower court by the above finding accepted and relied on doctrine of necessity as one of the grounds leading to the relocation of the tribunal. It is rather surprising that the appellant did not deem it expedient and proper to raise a ground of appeal against the lower court’s reliance and acceptance of the doctrine of necessity as a reason to justify the relocation of the tribunal to Abuja. I do not want to say more on that point. Suffice it to say however, that he could be deemed to have also endorsed the stance of the lower court on that, and is therefore deemed to have accepted it. As a corollary, it is my view that the doctrine of necessity is applicable in this instant case and it was rightly applied by the tribunal and the lower court to justify the resolve by the President of the Court of Appeal, to relocate the tribunal to Abuja to hear and determine the petition instead, of in Rivers State, in view of the impending insecurity prevailing there, in order to save the lives of the judges of the tribunal and its supporting staff. See the case of Lakanmi v. Attorney-General, Western Region of Nigeria (1970) NSCC 1143 and the recent case of Oguebie v. Chukwudile and 2 Others (1979) All NLR 38 at 52 – 53. I strongly hold the view that the lower court was right in relying on , accepting and applying the doctrine of necessity to bear as one of the grounds, for relocating the tribunal by the President of the Court of Appeal to Abuja, in view of serious security challenges prevailing in Rivers State when the tribunal was constituted. I accordingly so hold.’]
‘On the whole, in view of my discourse above, I hold that the tribunal had been properly constituted by the President of the Court of Appeal even without consultation with the Chief Judge of Rivers State or President of the Customary Court of Appeal who in any case, were even non- existent at the time of constituting the tribunal. Again, it is my judgement that the President of the Court of Appeal had the power and had rightly exercised such power to relocate the tribunal to Abuja to entertain, hear and determine the petition in view of security challenges prevailing in Rivers State when the tribunal was empaneled. Therefore, the tribunal was properly constituted and it is thus not bereft of jurisdiction to entertain, hear and determine the petition in Abuja in view of the adduced evidenceof insecurity prevailing in Rivers State then. Thus, in the light of what I have said above, I am unable to see any merit in this appeal. It is therefore hereby dismissed with no order on costs.’
➥ FURTHER DICTA:
⦿ PURPOSE OF FILING A REPLY BRIEF IS TO RESPOND TO NEW POINTS RAISED BY RESPONDENTS BRIEF
At the hearing of this appeal on 19 October 2015, the learned senior counsel to the 1st and 2nd respondents urged us to discountenance it as it was in contrast with what a reply brief is supposed to contain and he therefore A urged us to discountenance it. In his response, the learned senior counsel for the appellant felt otherwise and had explained that his reply brief is competent and should not be discountenanced. I have closely studied the appellant’s reply brief. I share the view of the learned silk for the 1st and 2nd respondents that large portion of the appellant’s reply brief contains repetition of submissions and arguments earlier advanced by the appellant in his main brief. The learned silk for the appellant merely succeeded in amplifying or fine-tuning them. It therefore does not qualify as what a reply brief should contain. It is trite law that the purpose of filing a reply brief to a respondent’s brief by an appellant is simply to reply to new points which were raised or canvassed in the respondent’s brief of argument. It is therefore not meant to be used to put right or fill any lacunae or error in the appellant’s brief or to fine-tune, repeat or amplify arguments proffered by the respondent in the respondent’s brief of argument. The instant appellant’s reply brief is therefore unnecessary, since it is largely a repetition of the arguments or submissions earlier made or provided in the appellant’s main brief of argument. I therefore for that reason, hereby discountenance the repetitive portions of the appellant’s reply brief and shall refuse to consider them. See Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1; Shuaibu v. Maihodu (1993) 3 NWLR (Pt. 284) 784; Chukwuogor v. Attorney-General of Cross Rivers State (1998) 1 NWLR (Pt. 534) 375; Ojiogu v. Ojiogu and Anor. (2010) All FWLR (Pt. 538) 840, (2010) 1 SC 13. — Sanusi, JSC.
⦿ THE GOVERNORSHIP TRIBUNAL IS ALREADY ESTABLISHED BY THE CONSTITUTION
The wordings of section 285(2) are:- “ There shall be established in each States of the Federation , an election tribunal to be known as the Governorship Election Tribunal …” By the use of the word “ established ”, it could be taken to mean that the tribunal had already been established by the Constitution itself. This interpretation can be further fortified by sub-section (4) of the same provision dealing with quorum which also provides thus:- “ The quorum of an election tribunal established under this section shall be the chairman and one other member. ” It would therefore seem to me, that the learned senior counsel forthe appellant missed the point or misunderstood the law, when he submitted that the act of establishment of the tribunal was a futuristic event. My considered view in that regard is that, it is not a futuristic event because the Constitution had already established the tribunal by its provisions in section 285(2) and having done so, all that the President of the Court of Appeal is empowered to do, is to empanel the composition or appoint the Chairman and members of the already established tribunal whenever she/ he deems it necessary to do so. There is a world of difference between establishment of a statutory body and appointment of members to man such body. — Sanusi, JSC.
⦿ STATUTES SHOULD NOT BE INTERPRETED TO DEFEAT THE INTENTION OF THE LEGISLATURE
It will in my view, be absurd, especially if one takes into account that there was no Chief Judge or Customary Court of Appeal President in Rivers State as at the time of constituting the tribunal. It is trite law that provisions of statutes should not be construed in a way as would defeat the intention of the legislature or to defeat the ends it was meant to serve or where it will cause injustice. The law is well settled too, that where the A interpretation of a word in a statute is capable of being given two meanings, the court saddled with the responsibility of interpreting such word shall adopt and use the interpretation which would not defeat the intention of the law makers. See Yabugbe v. C.O.P. (1992) 4 SCNJ 116; Lawal v. GB Ollivant (1972) SC 124. — Sanusi, JSC.
⦿ WHERE INTERPRETATION IS CAPABLE OF TWO MEANINGS, ADOPT A NON-DEFEATIST APPROACH
It is settled that where in the interpretation of a word appearing in a particular piece of legislation, such word is capable of two meanings, the court has a duty to adopt an interpretation which would not defeat the intention of the law makers. See Mandara v. Attorney-General, Federation (1984) NSCC 221; Yabugbe v. C.O.P. (1992) 4 SCNJ 116; Lawal v. G. B. Ollivant (1972) 3 SC 124. — Galadima, JSC.
Wike Ezenkwo Nyesom
Hon. (Dr.) Dakuku Adol Peterside
All Progressive Congress (APC)
Independent National Electoral Commission (INEC)
Peoples’ Democratic Party (PDP)
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Emmanuel C. Ukala SAN.
⦿ FOR THE RESPONDENT
Yusuf Ali SAN
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)