IN THE COURT OF APPEAL STUDENTS’ JUDICIAL COUNCIL HOLDEN AT THE LAGOS STATE UNIVERSITY On Thursday, the 15th day of January 2015 Before their lordships Oluwadamilola Joshua Aderinmola President Of The Court Of Appeal Yusuf Adebayo Ganikale Justice Of The Court Of Appeal Oluwakemi Stephen Adeyemi Justice Of The Court Of Appeal CA/002/2014 Between Afolabi Wasiu Olawale Appellant And Independent Electoral Committee, MASSA-LASU And Respondent Samuel Oluwafemi Sehogbe JUDGEMENT OF THE LASUSU COURT OF APPEAL Yusuf Adebayo Ganikale, JCA (Delivering the Leading Judgement): This is a consolidated appeal, which arose from the decision of the Election Petition Committee, holden at the Faculty of Management Sciences, Lagos State University, delivered on the 13th day of December 2014, in which the Committee dismissed the matter of the Petitioner/Appellant. The facts relevant to the appeal are the fall out of the general elections conducted in the month of December at the Faculty of Management Sciences. The election included Presidential election into the office of the President of the Faculty of Management Sciences. The Appellant and the 2nd respondent were candidate sat the presidential election. At the end of the election, the 2nd respondent was announced the winner of the election by the 1st respondents, being dissatisfied with the election, filed an election petition before the Independent Petition Committee, which dismissed the petition. In the course of the petition, the respondent filed a preliminary objection which was dismissed by the Petition Committee which then proceeded with the matter and gave its decision on the 13th day of December dismissing the petitioners petition. Further aggrieved by the decision of the Committee, the petitioner filed an appeal before this court on the following ground: That the MASSA-LASU Election Petition Committee erred in law to have declared the 2nd respondent (Samuel Oluwafemi Sehogbe) an Eligible aspirant and valid winner of the MASSA-LASU Presidential Election. In the brief signed by A. O Salvador, the Learned Senior Counsel distilled and submitted the following issues for determination from the ground of appeal. 1) Whether the MASSA-LASU Constitution has been legally amended/altered/review/tampered with or repealed. 2) Whether Mr. Oluwafemi Sehogbe has been validly elected as MASSA-LASU President. In the same vein, the 2nd respondent ssettled by T. A Adebesin, the Learned Senior Counsel also identified the following issues for determination: 1) Whether the reduction of CGPA for MASSA-LASU Presidential Election from 3.00 to 2.5 was validly done within the circumstances of this case. 2) Whether Mr. Samuel Oluwafemi Sehogbe has been validly elected as MASSA-LASU President 3) Whether the Petitioner/Appellant has proven his case beyond reasonable doubt to be able to sustain his prayers. I will adopt the issues as crystallized by the learned 2nd respondent’s Counsel as they best represent in full the complaints raised by this appeal. The other appeal is that of the respondent on ruling of the preliminary objection by way of interlocutory appeal in which it formulated two grounds of appeal: 1) That the FMS Election Petition Tribunal erred in law when it held that the issue of eligibility of candidate is not a pre-election matter for the High Court to decide inspite of binding Supreme Court and Court of Appeal decisions to the contrary. 2) That the FMS Election Petition Tribunal erred in law when it held that the non-joinder of the Electoral Commission of MASSA-LASU 2014 in the petition of the petitioner dated the 4th of December 2014 is not fatal to the case and does not render the petition incompetent contrary to well known established principles in Election Petition Jurisprudence. The respondent on their interlocutory appeal formulated three issues from the grounds of appeal, which are: 1) Whether the issue of eligibility of candidate for an election is pre-election matter 2) Whether the electoral Commission is a proper party in this petition 3) If issues 1 and 2 above or either of both is answered in the affirmative, whether this tribunal still has jurisdiction to hear this petition. The appellant, in their reply brief to this interlocutory appeal formulated two issues for determination, which are: 1) That the Election Petition Tribunal has the requisite jurisdiction/power to sit hear, and adjudicate over this matter. 2) That by notice of joinder of parties duly served, on the 11th day of December 2014, all proper parties have been forwarded against. I will again adopt the issues as crystallized by the learned 2nd respondent’s Counsel on this interlocutory appeal as they best represent in full the complaints raised by the appeal. It follows therefore that there are 6 issues for determination before this honourable court and I shall consider the issues on the interlocutory appeal before that of the substantive appeal by the appellant. ISSUE ONE Whether the issue of eligibility of candidate for an election is pre-election matter. The crux of this issue is basically whether issues as to the eligibility of a candidate to an election is either a pre-election matter or post. The respondent who filed this interlocutory appeal argued and submitted that it is a pre-election matter. The learned Counsel relying on Obot v. Etim (2008) 29 WRN 128; Ayogu v. Nnamani (2006) 8 NWLR (pt. 981) 160 argued strongly that the issue of eligibility is pre-election that can only be taken by the High Court and not an election petition tribunal/committee. He further argued that since the appellant knew of the ineligibility of the respondent from the on set before the election was conducted, he could not be heard on it as he has slept on his right. He relied on Onifade v. Oyedemi (1995) 5 NWLR (pt. 601) pg. 54 The appellant however argue on this issue relying on section 138(1)(a) of the Electoral Act 2010 and Chapter 6 section 5(1)(2) of MASSA-LASU Constitution to maintain that the court indeed has the requisite jurisdiction to entertain the matter. This question no doubt bothers the jurisdiction of the Election Petition Committee of MASSA-LASU. Jurisdiction is essentially the power or authority of a particular court or tribunal to adjudicate on a matter, Ariwoola J.S.C in Musaconi Ltd v. Aspinal (2013) LPELR-20745 (SC) p. 28define jurisdiction has; “the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. Jurisdiction is blood that gives life to the survival of an action in a court of law, and without jurisdiction, the action will be like an animal drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be abortive exercise. The non-qualification of candidate to contest an election is the first ground under section 138(1) of the Electoral Act 2010 (as amended) for presenting an election petition to the lower tribunal. In other words, it is certainly not correct as erroneously argued by the respondent that the complaint of the appellant on the academic qualification of the 2nd respondent to contest the election in question is a pre-election matter. Surely, it is a complaint clearly cognizable in the lower tribunal. In any event, this issue has been laid to rest to rest in the recent unreported decision of the full compliment of the Supreme Court in the consolidated cases of PDP v. Saror & Ors SC. 381/ 2011; Suswan v. Saror & Ors SC. 383/2011 where their Lordships held as follows: “it is not correct that the matter of qualification of a candidate is a pre-election issue and the for the regular court alone.” The apex court again in the more recent decision of Ocheja Emmanuel Dangana v. Hon. A.A.A Usman & Ors (2012) 208 LRCN 92 had put the matter regarding the power of an election tribunal to determine the question of qualification or non-qualification of an elected candidate, whose election is challenged pursuant to section 138(1)(a) od the Electoral Act 2010 beyond any argument. My Lord, Onnoghen,JSC at pages 130-131 of the report stated thus: “section 138(1)(a) of the Electoral Act 2010 (as amended) provides, inter alia, that an election may be questioned on the ground that a person election is questioned was at the time of the election not qualified to contest the election. With the above provision in view, it will be very unsafe to agree with the submission of the learned senior counsel for the Appellant that the issue involved in this case was strictly a pre-election matter in which an election Tribunal has no jurisdiction to hear and determine and that only the High Courts have jurisdiction to deal with the matter. I do not agree that matter envisaged in section 138(1)(a) of the Electoral Act 2010 (as amended) is a pre-election matter over which an election tribunal has no jurisdiction. I however agree that the qualification/disqualification to contest an election is both pre-election and an election matter. However, in the instant case, section 138(1)(a) of the Electoral Act has clearly made the particular pre-election matter entertainable by an by an election tribunal by expressly making the issue of qualification of a candidate to contest an election a ground in an election petition challenging or questioning the return of the winner of the said election. I therefore hold the considered view that an issue of qualification of a candidate to contest an election under the Electoral Act 2010(as amended) is both a pre-election and an election matter which both the High Courts and the relevant Tribunal have jurisdiction to hear.” See also Airhiavbere v. Oshiomole & Ors (2012) LPELR-9824 (CA) Also, I find it difficult to agree with the learned counsel for the 2nd respondent that the appellant had slept on his right since he was aware of the academic qualification of the 2nd respondent and did not contest it neither did he made effort until the election had been conducted and the decision announced. On this issue, I shall find abode in the statement of Per Onu, JSC in Menakaya v. Menakaya (2001) LPELR-SC. 169/96, (2001) 16 NWLR (pt. 738) 203 where the learned jurist stated that: “when therefore it is argued that a statutory provision has been waived, it has to be considered whether the statute confers purely private or individual rights which may be waived, or whether the statutory provision confers rights of a public nature as a matter of public policy. If it is the latter, the provision of such statute cannot be waived as no one is permitted to contract out of or waive a rule of public or constitutional policy.” Aligning the above with the fact, the provision is question which stipulate the minimum requirement of 3.00 for the office of the president of the MASSA-LASU does not confer a private right on the appellant since it is a provision by the students of the faculty for the students of the faculty and it is public policy propelled and not an individual right specifically provided for the appellant. Moreso, chapter six section 5 of the MASSA-LASU Constitution which donates the jurisdiction of the Election Petition Committee provides for the functions among others as follows: 1) Hear all cases of electoral malpractices/irregularities. 2) Answer any question as to whether or not any person has validly been elected in any election. Having said that let me tacitly agree with the appellant that tribunal had jurisdiction to try the petition. The Election Petition Committee was right in their decision and I disagree with the contention of the respondents and decide this issue in favour of the appellant. ISSUE TWO The question here is whether the Electoral Commission is a proper party. On this question, the respondents argue stalwartly that the issue of non-joinder of the Electoral Committee is a fundamental procedural defect that goes to the root of this petition and worthy of the case being struck out. Relying on Lamido v. Turaki (1999) 4 NWLR (pt. 600) 578 The appellant contended that once a party has the locus standi to sue, the non-joinder or mis-joinder of any other particular party does not and cannot defeat the action relying on Akanni v. Olaniyan (2007) ALL FWLR (pt. 380) 1534 at 1547. The counsel also argued that since the party had been joined by way of application, an issue on same point becomes a matter of academic question and be discountenanced by the court. In resolving this issue, it is incumbent on me to first distinguish the case of Lamido v. Turaki(supra)from the case at hand. Lamido’s case, bothers on the interpretation of a provision of sections 121 and 133(2) of Decree No. 3 of 1999,while the former section creates an offence and provides for sanctions on a presiding officer to an election who obstruct the proper counting or obtaining correct result of an election, the latter provision states that if the petition complains of the conduct of an Electoral Officer, a presiding officer, or returning officer or any other person who took part in the conduct shall for the purpose of the decree be a respondent and shall be joined in the election petition as a necessary party. It follows therefore, it was the above provision in the case, which made it mandatory for the court to join or strike a case on non-joinder of the electoral officer. The issue of non-joinder of the Independent Electoral Committee could be safely referred at most as a ‘technical defect’. A technical defect is one, which may come within the four corners of it but in fact, it does not affect the merit of the case. It is a mistake, which does not go to the bone of the matter; it is merely abstract and practically an harmless error. The word technical from which technicality is derived means immaterial, not affecting substantial right without substance. Olley v. Tunji (2013) LPELR-20339 (SC); Atunda v. Ajani (1989) 3 NWLR (pt. 111) 51 it is in this sense illustrated above that the eminent jurist, Oputa, JSC warned that: “the Court will not endure that mere form or fiction of law, introduced for the sake of justice, shall work wrong, contrary to real truth and substance of the case before it.” Aliu Bello v. A.G Oyo State (1986) 15 NWLR (pt. 45) 828. Of technicalities as described above, in the immortal words of a mortal being, Eso, JSC (May God rest his soul) directed that: “when these ghost of the past (technicalities) stand in the path of the justice clanking their medieval chains, the proper course for the judge is to pass through them undeterred.” The State v. Gwanto (2983) 1 SCNLR 142 at 160; Olley v. Tunji (2013) LPELR-20339 (SC). Moreso, section 133(1) of the electoral act 2010 (as amended) provides that: No election and return at an election under this Act shall be questioned in any manner other than by petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the constitution or of this Act, and in which the person elected or returned is joined as a party. It follows therefore that the necessary and mandatory party under the Electoral Act 2010 (as amended) in an electoral matter is the person elected or returned. I also resolve this issue in favour if the appellant. ISSUE THREE The issue three I must confess is almost unnecessary, as it is only consequential upon the initial issues already settled above. On the proliferation of issues in a brief of argument, the Supreme Court per Dahiru Musdapher, JSC (as he then was) in Omega Bank (NIg) Plc v. O.B.C Ltd (2005) 8 NWLR (pt. 928) 547 had this to say, “this Court had on several occasion condemned the proliferation of issues in briefs of argument. It is not the number of issues for determination formulated that determines the quality of a brief or that determines the success of an appeal.” Inegbedion v. SElo-Ojemen& Anor (2013) LPELR-19769 (SC); Iwoha v. NIPOST Ltd (2003) 8 NWLR (pt. 822) 308; Agu v. Ikewibe (1991) 3 NWLR (pt. 180) 385; Adelaja v. Fanoiki (1990) 2 NWLR (pt. 131) 137; Adisa v. The State (1991) 1 NWLR (pt. 168) 490 To answer the question still, the Electoral Committee had jurisdiction and exercised same in the most proper manner t could possible do. I hereby dismiss the interlocutory appeal of the respondent and award no cost in favour of the appellant. Having resolved all the issues in the interlocutory appeal. I therefore proceed to the appeal of the appellant on the decision of the Electoral Petition Committee.As I said earlier, I will adopt the issues as distilled by the 2nd respondent in the determination of this appeal ISSUE ONE Whether the reduction of CGPA for MASSA-LASU Presidential Election from 3.00 to 2.5 was validly done within the circumstances of this case. The essence of the question we are asked to answer is whether the constitution has been properly amended by the Student Representive Council being the Legislative arm of MASSA-LASU. The learned counsel for the appellant argued that the MASSA-LASU Constitution has not in any way been legally amended, repealed or tampered with. He posited that the House has not met the constitutional requirement for a valid amendment sof the constitution as chapter one section five of the Constitution of MASSA-LASU provides that the Constitution shall be amended by 2/3 majority of a joint sitting of the executives and legislatures who must vote in support of such amendment. In an attempt to arrive at the 2/3 majority, the Counsel to the appellant did some mathematical calculations and referred to the provision of chapter four section one of the Constitution which he argued states that the SRC shall comprise of one elected representative from each level of each department of the faculty and each departmental president and speakers are also representative members of their departments at the SRC. Counsel maintained that there are four representatives from each of the 9 departments making a total of 32 representative members with the president and speaker of each department making a total of 16 automatic members plus 32, summing up to 48 members of the SRC, the learned Counsel therefore submit that no doubt the 2/3 48 is 32 and surprisingly, the reduction of the CGPA from constitution required 3.00 to 2.50 as provided for in chapter five, section two paragraph 6(C)by 18 members of the SRC has through a resolution without following the constitutional required mode of amendment could not be said to have been amended. The Learned Counsel to the 2nd respondent however argued that reduction of the CGPA is valid within the circumstances of the case. The learned counsel with unparalleled ingenuity argued that reduction followed the request of the Chairman of the MASSA-LASU Independent Electoral Committee 2014 after having advertised the open of the sales of form for the office of the president of MASSA-LASU and on the close of date slated for sales of the form no single student of the faculty has shown up to purchase the form for the office. He further submitted that since no single member of the faculty purchased the form and that this was the first time such had happened in the history of the faculty and since the constitution did not envisage this eventuality, the doctrine of necessity which was adopted by the house at the point was absolutely propelled by the circumstances of the case and likened this to the swearing in of the President Goodluck Ebele Jonathan of the Federal Republic of Nigeria when the then erstwhile president was away on sick bed. In determining this question we have to look at the provision chapter five sections two for the qualification of candidate for the office of the president MASSA-LASU and chapter one section five on the procedure for the amendment of the Constitution. Chapter five, section 2(6)(C)provides that candidate for the president must be of CPGA of 3.00 and above. In like manner, chapter one section five provides for the mode and procedure for the amendment of the constitution, as follows: i. The Constitution should be amended at least every four years. ii. It shall be amended when necessary, but 2/3 of a joint sitting of the executives and the legislatures must vote in support of such appointment or review. iii. The Constitution amendment Committee shall be constituted by the SRC iv. The Committee shall consist of 3 SRC members and one non-member each from every department v. The committee shall publicize the matters and provisions to be amended to the public. This therefore leaves me with no doubt that the 3.00 CGPA is a constitutional requirement of the MASSA-LASU Constitution. The supremacy of the Constitution of MASSA-LASU is captioned by chapter one section one which states that the Constitution shall be supreme and its provisions shall have binding force on all organs and associations. The court has given recognition to this supremacy and had expatiated on the constitution through various judgments in its interpretative capacity. The constitution is described as the grundnorm and the fundamental law of the land. All other legislations in this country take their hierarchy form the provisions of the Constitution. It is not a mere common legal document. It is an organic instrument, which confers powers and also creates rights and limitations. It regulates the affairs of the nation state and in this circumstance of the body and it defines the powers and the different components of government. Once the powers, rights and limitations under the constitution are identified as having created, their existence cannot be disputed in a court of law. But the extent and implication may be sought to be interpreted and explained by the court. The provisions of the Constitution takes precedence over any law or resolutions enacted by the National Assembly or the Students Representative Council even though they have the power to amend the Constitution itself. Buba Marwa v. Murtala Nyako (2012) LPELR-SC.141/2011; A.G v. Ondo State v. A.G Federation (2002) 1 NWLR (pt. 772) pg. 222; A.G Abia State v. A.G Federation (2002) 6 NWLR (pt. 763) pg. 204; Abacha v. Fawehinmi (200) 4 SC (pt. 11) pg. 1; Balonwu v. Governor Anabra State (2009) 18 NWLR (pt. 1172) pg. 13 The document DRIV of the record of appeal which purport to approve the reduction of the academic requirement for the office of the President of MASSA-LASU is signed by 19 members one of which the evidence received at the Election Petition Committee shows unequivocally that he has resigned from the house and therefore not a member of the SRC at the time of the purported reduction, his signature is therefore invalid on this basis. The fundamental question here therefore is whether the 18 remaining members could be said to have validly amend the provision of the constitution academic requirement for the office of the president. In answering this question is there is a great need to examine the section concerning the composition of the SRC. Chapter four, section 1 of the MASSA-LASU Constitution provides for the composition of the SRC as follows: 1) The SRC shall comprise of one elected representative from each level of each department of the faculty. 2) Each departmental president and speakers are also representatives of their departments at the SRC. Hence, by the provisions of the Second Schedule to the Supreme LASUSU Constitution, there are 8 departments in the Management Sciences and all departments have four levels each except for the department of Management Technology, which has five levels instead. By way of a simple computation, it follows therefore that there are 33 members of the SRC and 16 other representatives being the president and the speaker of each departments. Thus, there are in total 49 members of the SRC of the Faculty of Management Sciences. In stating the obvious but oblivious to the appellant, the constitutional requirement for amended of the Constitution as stated above is 2/3 majority of the joint sitting of the executives and legislature, it follows therefore that the signature of the 18 members of the SRC is nothing to go by the Constitutional requirement. On the doctrine of necessity as sturdily argued by the 2ndrespondent counsel, the Supreme Court of Nigeria has laid to rest for a long time that the doctrine is only applicable when the Constitution could not be said to make provision for the circumstances or situations. see Lakanmi & Ors v. Attorney-General (West)& Ors (1970) LPELR-SC.58/69 However, the circumstances of this case could not be said to warrant the exceptional case of necessity mainly because the fact before this court does give no room for such. The allegation in the request on the letter of the chairman of the Electoral Committee to reduce the CGPA academic requirement on the letter dated 24th of November 2014 and marked RDIII of the record of appeal shows that the request was made right before the deadline for the sales of the form elapse as the two time table in record carries 25th and 28thof November respectively as the close of date. Thus, there was still time for the Committee to further sale forms to any interested aspirant. Moreso, the court is most displeased with the attitude of the Electoral Committee of MASSA-LASU and the SRC for acting contrary to the spirit of the Constitution of the MASSA-LASU, which constitute the aspirations of the students of the faculty. ISSUE TWO Whether Mr Samuel Oluwafemi Sehogbe has been validly elected as MASSA-LASU President This issue basically comes to no issue since the provisions of the Constitution has not been amended. Then 2nd respondent could not have been validly elected since he has failed to meet the minimum academic requirement for the exalted office of the President as depicted in the PD 3 of the record, which is the academic record of the 2ndrespondent. Thus literal interpretation of the provision of chapter five section 2(6) (c) is therefore sufficient to displace the election of the 2ndrespondent see A.G of Lagos State v. A.G of the Federation (2014) LPELR-222701. I therefore resolve this issue in favour of the appellant. ISSUE THREE Whether the Petitioner/Appellant has proven his case beyond reasonable doubt to be able to sustain his prayers. As contended by the 2nd respondent’s counsel, election cases are no doubt sui generis and have their own peculiar pattern and rules. They however also comply with general rules and principles of law generally. It is a settled law that where allegation of crime is directly in issue in any proceedings, the standard of proof is beyond reasonable doubt. See Nwobodo v. Onoh (1984) 1 SCNLR 1; Abubakar v. Yaradua (2009) ALL FWLR 1 at 129-130; Dantiye v. Kanya (2009) 4 NWLR (pt. 1130) 13 at 33; Haruna v. Modibo (2004) 16 NWLR (pt. 900) 487 among others In applying this settled principle to the fact before the court, the petitioner’s claim only asserts that the 2nd respondent has not met the constitutional academic requirement for the office of the president and this bears not in the least any criminal allegations on the 2nd respondent. To further buttress the obvious, the academic profile of the 2nd respondent marked PD3 of the record of appeal shows clearly the academic stand of the 2nd respondent in which was not controverted or denied by the 2nd respondent before the Electoral Petition Committee. The obvious submission therefore is that there is no legal requirement of proving beyond reasonable doubt on the appellant. I also resolve this issue against the respondent. The court hereby allows the appeal and upturns the judgement of the Electoral Petition Committee and gives the following orders: • That the 2nd respondent Mr. Samuel Sehogbe was not validly elected as the President of MASSA-LASU • That the appellant is the rightful winner of the Presidential Elected conducted in the Faculty of management Sciences on the 3rd of Decemebr 2014 • That the appellant be sworn in as the President of MASSA-LASU. I award no cost and the respective parties should bear their cost. Per. Damilola J. Aderinmola P.C.A I had the privilege of reading through the Judgement of my learned brother who delivered the lead judgment; I am satisfied and i concur. However, I shall also add to it from an orthodox point of view for emphasis and to underscore my support. I shall address first the issue of jurisdiction before delving into the substantive issues. On the issue of jurisdiction which forms a basis for this entire process the absence of which will only make this judgment a Judicial Gymnastics! At the tribunal, the Respondent raised a preliminary objection questioning the jurisdiction of the tribunal to hear a matter as to eligibility of a candidate which in the contention of the Respondent is a pre-election matter. In affirming the decision of the tribunal, I shall consider the Electoral Act, 2010, the MASSA-LASU Constitution and the 2012 case of Airhiavbere v. Oshiomole (2012) LPELR-9824 (CA) The subject matter of this issue of jurisdiction borders on the question; is the eligibility of a candidate a pre-election or post-election matter? The determination of this question will therefore answer the question as to whether the Massa-Lasu Tribunal has Jurisdiction to entertain the matter. In the case of Salim v. CPC (2013) 1-2 S.C. (Pt. IV) 105 at 133, per Onnoghen JSC; “…in election or election related matters including pre-election cases, time is of the essence and that where an election has taken place a high court ceases to have jurisdiction over a pre-election matter except the action/matter/suit/ relating thereto was instituted prior to the holding of the election or declaration of result…” The Respondent has indeed presented a beautiful and intelligent argument to polish the argument that the issue of eligibility of a candidate is a pre-election matter which can only be entertained by the high court relying on plethora of cases; Obot v. Etim (2008) 29 WRN 128; Kolawole v. Folusho (2009) 50 WRN 68; Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) among other cases. Without necessarily distinguishing the cases cited by the Respondent as it differs in certain areas from the case at hand, I will direct the mind of this court to the more recent case of Airhiavbere v. Oshiomole (2012) LPELR-9824 (CA) where the court has indeed reiterated that the issue of eligibility against the background of what was previously believed and obtainable is a pre-election and post-election matter. This therefore goes to show that the circumstances of the case will determine when the issue can be contested. Furthermore, the provisions of Section 138(1)(a), Electoral Act, 2010 is clear on the grounds of petition which also covers question as to the qualification or eligibility of a person who partook in a concluded election. Also, the Massa-Lasu constitution is clear on this matter, examining the unambiguous provisions of Chapter Six, Section 5(2) which confers on the Election Petition Committee the duty to answer question as to whether or not any person has validly been elected in any election. The combined reading of the above goes to show that that tribunal has indeed acted within jurisdiction and the interlocutory appeal by the Respondent on jurisdiction is hereby dismissed. On the second issue raised in the interlocutory appeal by the Respondent (Samuel S. Oluwafemi) as to the Non-joinder of IEC Massa-Lasu; I will not dwell so much on that before moving to the substantive appeal. The prayer of the Respondent on the issue evident in paragraphs 3.24 of his brief seeks that the petition be struck out for falling short of legal requirement, consequentially, if this is granted, will only amount to the petitioner re-filling his case and of course making it proper, it still doesn’t affect the substantive issue. To my mind, although the non-joinder of a necessary party is indeed a very big issue but does not go to the root of the matter at hand. Without repeating what my learned brother has said, I shall analytically consider the substantive issue flowing from the decision of the tribunal and the documents presented at the tribunal by the Respondent having thoroughly gone through the briefs of both parties. The question which my Judgmental analysis will evolve is; can necessity be invoked to violate an express provision of the law? Is this case a true case of necessity from the evidences adduced? Over time we have seen situations whereby necessity is invoked to solve novel problems which the constitution or any law in force in a particular place might not have envisaged as the drafters are not omniscient. In fact in Lakanmi and Kikelomo V The Attorney-General of Western State of Nigeria and Ors (1971)the Nigerian Supreme Court held that the voluntary transfer of power by the civilian government to the military in 1966 even though, was strange and never happened in history, was justified under the doctrine of necessity. The Nigerian Supreme Court noted that it was wrong to assume that the constitution made provision for all emergencies, so when any strange development happened, you have to find an answer to it in the constitution. It is therefore not true to say that the doctrine of necessity is an alien concept in Nigerian jurisprudence. Therefore, while it is conceded that extra-ordinary cases and circumstances might give ground for the evading or setting aside the provision of a law, it should be well noted that the provision of a law remains superior and should always be held in high esteem; should be guarded jealously most especially by the law makers who should do nothing leading to its disobedience except the disobedience flows as a natural reflect; thus a necessity. Paragraph 2.5 & 2.6 of the Respondent’s brief of argument and RD3 clearly shows that necessity led to the reduction of the required Cgpa for a presidential race from 3.0Cgpa to 2.5Cgpa. This was the underlying thought of the tribunal where it upheld the election. The question again is was there a case of necessity? From the evidences of the respondent particularly RD1 which is an election timetable released by the Massa-Lasu IEC dated 13th November, 2014 it projects the sales of form to be from 17th – 28th of November, 2014. In a subsequent timetable released RD2 which for reasons best known to the IEC was not dated projects the sales of form to be from 17th to 25th November, 2014, a reduction in the duration for the sales of form against what was contained in the former. Then I begin to wonder in my heart how reducing the days of the sales of form will solve the problem of “non-turn up of aspirants for the post of the president at the date of closure of electoral form” evident in RD4; a request by the IEC to the SRC Maasa-Lasu to reduce the required CGPA for the presidential race. On the other hand, as the respondent again brilliantly argued that RD2 was supposed to be the first timetable while RD1 the second which was released as an extension of the duration of the sales of from to accommodate prospective candidates. Taking this argument to be true will do more harm to the case. If a subsequent timetable which reflects an extension in the sales of form is dated 13th November, 2014 definitely an initial timetable should carry an earlier date from all indications and logical reasoning. Bearing in mind that the letter written to the SRC by the IEC requesting a reduction in cgpa for non-turn up is dated 24th November, 2014 as evident in RD3. Again, I begin to wonder in my heart how the IEC could allege non-turn up of aspirants for a form which is still 4days away to closure?! Also, RD4 evidences that the SRC had her sitting 26th November, 2014 to deliberate on the request of the IEC and passed a resolution which was backed up by signatures of 2/3 honourables members as indicated in RD5. I almost fell into this parliamentary trick until I realised that the purported document which ought to be an endorsement of the resolution of a particular sitting was signed and dated even before the sitting ever took place. It appears to me that RD5 is a mere quorum of attendance and is not in any way a confirmatory support of the said resolution to reduce cgpa, although will still be ineffective even if it was. The same RD5 shows that one Adeleye Samuel signed in support of the resolution of the house and on the contrary PD6 shows clearly that he had resigned his position as an honourable member since 11th November, 2014. How come he signed and was present at a sitting held 26th November, 2014? All indications from the aforesaid shows that the Massa-Lasu SRC is indeed an incompetent house who has compromised in its primary functions and a disgrace to students’ unionism. It appears to me that the IEC and the SRC has interest in the outcome of the election and has done nothing but political permutations to have things run in their favour. The court will in no way succumb to this evil. From the circumstances surrounding this case, evoking necessity by a jungle sitting of the house is unwarranted and superfluous. The Massa-Lasu Constitution beautifully provides in its Chapter three (3) for Congress. The house should have simply called for a congress which would have debated and passed a resolution to address the issue at hand. This will be in conformity with the grundnorm of the people of Massa-Lasu. I shall however reiterate that this would be warranted if there was a case of necessity which required urgent measures. From the evidences adduced and the surrounding circumstances there was never a necessity! Since it has been explicitly canvassed that the SRC resolution is in no way evoked by necessity what the SRC did doesn’t appear to me as an amendment of the constitution as provided in Chapter One, Section Five of the Massa-Lasu Constitution. The amendment of a constitution can only be by a means prescribed by the same constitution. See the case of Nkwocha v. Governor of Anambra (1984) 15 NSCC, p484 After a deep research and the analysis stated herein, I hereby overrule the judgment of the tribunal (MASSA-LASU IPC) and rule as follows; 1. That Mr. Oluwafemi Sehogbe was not validly elected as MASSA-LASU president 2. Mr Afolabi Wasiu Olawale should be sworn in as the President of MASSA-LASU Oluwakemi Stephen Adeyemi JCA I have had an opportunity before now to read in draft the lead judgement just read in open court by my brother, Yusuf Adebayo Ganikale JCA. I agree with the reasoning of my brother and the necessary conclusion which he raised. I only wish to add my own voice to the already well articulated voice of my learned brother. This is a consolidated appeal from the decision of The Management Sciences Student’s Association-Independent Petition Committee (MASSA-LASU). The Appellant (Petitioner at the Tribunal) appealed against the judgment of the Tribunal that The Constitution of Management Sciences Students’ Association had been validly amended to reduce the requirement for CGPA for the office of The President of the Association to 2.5 for the 2014/2015 academic session. The Respondent (Respondent at the Tribunal) appealed against the ruling of the Tribunal that it has jurisdiction over the matter notwithstanding that The Management Science Students Association Independent Electoral Commission (MASSA-IEC) was not joined as a party and the main question at the Tribunal relates to the eligibility or otherwise of the declared winner, Mr. Oluwafemi Samuel Sehogbe. Management Sciences Student’s Association (The Association) is one of the Students’ bodies in The Lagos State University and the recognised association of all Students of the Faculty of Management Sciences based on The Third Schedule to the Constitution of Lagos State University Students’ Union 2012. The Association has the office of The President. For the purposes of the 2014/2015 Academic Session, The Association set up the MASSA-IEC to conduct the elections. MASSA-IEC released two time tables one dated the 13th of November 2014(DP I) and the other (DP II) not dated for the conduct of the elections. As at the 24th of November 2014, nobody had bought the form for the elections to the office of the President. On the 24th of November 2014, the MASSA-IEC wrote to the Management Sciences Student’s Association Students’ Representative Council (MASSA-SRC) asking for a reduction in the CGPA requirement for the office of the President for the purposes alone. The Committee gave as its reasons the failure of candidates of who showed interest to meet the constitutional requirements and to prevent a situation where the post is vacant (DR III). The MASSA-SRC subsequently and by a letter dated 27th of November approved the reduction and attached the signature of 19 Honourables of the House (one of whom had resigned earlier on the 11th of November 2014) (PDIV). Subsequently, Mr. Oluwafemi Samuel Sehogbe a law abiding student of The Faculty of Management Sciences, Department of Insurance purchased the MASSA-IEC form for the President of the Association. Mr. Afolabi Wasiu Olawale another law abiding student of the same faculty and of the Department of Insurance bought the form for the president also. On the day of the Manifesto, 2nd of December 2014, one Mr. Samson Oluwafemi of the Department of Insurance had the fear that one of the two candidates for the post of the president did not have the required CGPA i.e. 3.0 and he wrote “What is their CGPA?” on a plank (PD IV) which he displayed. His question was not answered. Elections to all the positions were held on the 3rd of December 2014 and the Respondent was declared winner. The Appellant on the 4th of December challenged the declaration of the Respondent as the winner at the Tribunal. The respondent replied on the 9th and raised a Preliminary Objection on the basis of jurisdiction of the tribunal. On the 11th, the Petitioner joined the MASSA-IEC. On the 12th, the Tribunal held that it had jurisdiction. On the 13th, the tribunal held that the constitution was validly amended. Notice of hearing of Appeal was filed to this court by the Petitioner on the 17th of December 2014. The respondent did not respond. It rather filed an interlocutory appeal on the ruling of the tribunal on the 22nd of December 2014. This court sat on the 24th of December 2014 and struck out the appeal of the Applicant for failure to give the respondent notice and record of appeal. This court subsequently adjourned till 12/1/15 when it held the parties in open court. The appeals were consolidated on the 12th of January 2015 and judgement has been reserved till today. The Court of Appeal in INEC V. Nyako(2011) 12 NWLR Pt. 1262 Pg. 439 provided reasons for consolidation of appeals and the nature of such consolidation in these words: “...it is an established and accepted judicial practice to consolidate actions or as the case may be, appeals in which the same issues are raised by parties that are substantially the same against one or some decision of a lower court for convenience and also save time in arguing them piece meal or separately. For that reason, consolidated appeals though heard at the same time, would retain their distinct and separate identities for purpose of the determination and so the law requires that there be separate pronouncement by the court on each of them.” See also Dr. Cyriaus Njoku v. Dr Goodluck Jonathan and 2 ors Unreported Suit No: FCT/HC/CV/2449/2012; Machika v. Kaduna State House of Assembly (2011) 3 NWLR Pt. 1233 Pg. 15 at 40 and 52 With this in mind, I proceed to pronounce on each of them seriatim. MR. Oluwafemi Sehogbe challenged the jurisdiction of the tribunal on two grounds and two issues were raised by Mr. Adetola Adebesin SAL counsel for Mr. Oluwafemi. The issues are: 1. Whether the issue of eligibility of a candidate is a pre-election matter; 2. Whether the electoral commission is a proper party in this petition; 3. If either or both is answered in the affirmative, whether the Tribunal had jurisdiction over the suit. The Appellant replied to the written brief of the Respondent. The Appellant in his written brief argued with force that electoral matters are special forms of civil cases and that the issue of the eligibility of a candidate is a pre-election matter for the High Court and not for the tribunal to decide and thus the MASSA-IPT had no jurisdiction on the matter. He relied on cases like Oke v. Mimiko; Obot v. Etim; Kolawole v. Folusho. The respondent in replying argued that the issue of the eligibility of a candidate is both a pre and a post election matter and that thus, an Election Tribunal has jurisdiction over it. He relied strongly on Section 138 of The Electoral Act 2010 and Chapter 6, Section 5 of the MASSA-LASU Constitution. Jurisdiction is the foundation for the exercise of judicial powers. In the absence of Jurisdiction, a court or tribunal can only strike out the suit. See Western Union Money Transfer Service v. LT. COL. Roy Alli(2012) LPELR-19730(CA). Indeed, Jurissdiction is so important that the acquiescence of the parties cannot confer jurisdiction on the court. The Statute creating the court or tribunal is the appropriate place to consider the jurisdiction of the court. The Supreme Court in Ohakim v. Agbaso [2010] 19 NWLR Pt. 1226 172 at 243 held that: in Ibrahim v. INEC [1999] 8 NWLR (Pt. 614) 334, it was emphatically observed that jurisdiction to entertain and determine an action including an election petition is one conferred expressly by the Constitution or by other statutes. The Statute creating the MASSA-IPT is The MASSA-LASU Constitution. It provides in Chapter 6, Section 5 that the functions of the tribunal shall include: 1. Hear all cases of electoral malpractice/irregularities 2. Answer all questions as to whether or not any person has validly been elected in any election The Court of Appeal in Okoli v. Udeh [2007] 10 NWLR Pt. 1095 213 at 273emphasised that: “...the court being the primary custodian of the Constitution must not treat their interpretation lightly. It is therefore the duty of the court to adhere strictly to rules governing the interpretation of the constitutional provisions, so as not to defeat the intendment of the lawmakers and the role of the Constitution in the governance of the country. The primary function of the court is to search for the intention of the law makers in the interpretation of the Constitution.” See also: Abaribe v. Abia Satete House of Assembly (2002) 14 NWLR (Pt. 788) 466; Yusufu v. Obasanjo (2003) 16 NWLR (Pt. 847) 532. I have no doubt in my mind that all questions as to whether or not any person has validly been elected in any election include a question on the eligibility of the candidate in this case the President-Elect, Mr. Oluwafemi Sehogbe. I thus answer the first question in the negative to the effect that the issue of eligibility of a candidate is not a pre-election matter. It is instructive to note that the decisions relied upon by the respondents were decided before Section 138 of the Electoral Act 2010 was enacted. Good law, they may have been then, they ceased to be good law from the date of the enactment of that law. In relation to the second issue, the respondent submitted that failure to join MASSA-IEC whose conduct of the election is being complained of was fatal to the case and the purported joining was not valid having been done after he raised a preliminary objection on that ground and before the Tribunal formally joined the IEC. The Appellant argued strongly in his brief that it joined the MASSA-IEC and that the issue of non-joinder has thus become an academic issue which this court will discountenance. In the alternative, it argued orally in open court that even if it did not join the MASSA-IEC, it had no duty under law to join them and that the only person he had a duty to join was the President-Elect.It may be noted that the judgement of the Tribunal had the MASSA-IEC as a party. The election complained of was conducted by MASSA-IEC. Decisions of this court one way or the other will affect the Commission thus requiring their joinder. The only necessary respondent in an election petition is the person whose election is complained of. Section 133 of The Electoral Act 2010Cap. 119 provides that: No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return...presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected is joined as a Party. And based on the canon of interpretation that the express mention of one is the exclusion of the other, the express mention of the party elected is the exclusion of any other person. The Petitioner needs not to join the Commission and indeed the presumption before this court is that they were joined as a party. I thus hold that the non-joinder of the MASSA-IEC was not fatal to the suit as to deprive the Tribunal and subsequently this Court jurisdiction over this matter. With the Jurisdiction of this Court now on firm standing, I go on to deciding the main appeal in this suit. The Appellant raised two issues for determination namely: 1. Whether the MASSA-LASU constitution has been legally amended, altered, reviewed, tampered or repealed. 2. Whether Mr. Oluwafemi Sehogbe has been validly elected as MASSA-LASU President. The Respondent choosing not to join issues with the respondent in his reply raised three issues namely: 1. Whether the reduction of CGPA for MASSA – LASU Presidential Election from 3.0 to 2.5 was validly done within the circumstances of this case 2. Whether Mr. Samuel Oluwafemi Sehogbe has been validly elected as MASSA-LASU President 3. Whether the Petitioner/Appellant has proven his case beyond all reasonable doubt to be able to sustain his prayers It is instructive to note that the Appellant did not respond to the issues raised by the Respondent. I consider that issue 1 of the Respondent (which is on all fours with Issue 1 of The Appellant’s issues for determination) and issue 3 of the respondent can validly dispose of this case. This is so because the allegation of The Petitioner is as to the eligibility of the respondent and not as to whether he won the election. If he is held eligible, he won and if he is held illegible, he could not have won. Something can never be built on nothing. The Law presumes the regularity of an election. In Marwa v. Nyako (2012) 6 NWLR (Pt. 1280) Pt. 169 at 339 held that: “Until an election is nullified and declared void, there is a presumption that it is valid, since its declaration is an official function. See section 168(1) Evidence Act.” Thus, the election of Mr. Oluwafemi Sehogbe is presumably valid and it is for the petitioner/Appellant to prove that the election was invalid. As regards Issue 1, the Appellant argued that the MASSA-LASU Constitution has not been amended to reduce the CGPA requirement for the office of the president from 3.0 to 2.5. he argued that an amendment of the constitution required a joint sitting of both MASSA-LASU SRC and the Executive and that this did not occur. What occurred only was a resolution of the MASSA-SRC reducing the CGPA to 2.5 attached with the signature of 19 people. He argued that the constitution is above other laws and can only be amended as it provides for. He relied on the cases of Labiyi v. Anretiola; Nkwocha v. Governor of Anambra State (1984) NSCC Vol. 15 Pg. 484 The Respondent was however willing to argue strongly that The Doctrine of Necessity under which the President of Nigeria became The Acting President makes the reduction valid. He argued that with Semester’s examination coming up soon, and election to the office of the President looking to be impossible because the people who showed interest do not meet the required CGPA, the MASSA-LASU IEC and SRC acted as heroes. I agree with the Appellant that the Constitution is above other laws in the land and that it can only be amended in line with laid down provisions of the law. it is an exception to the rule that a legislature cannot bind subsequent legislature. I also agree with the respondent The Doctrine of Necessity should avail them. I however must say that for the doctrine to avail the Respondent so as to make the resolution sufficient to waive the constitutional requirements, the MASSA-IEC should have fulfilled all righteousness by allowing time fixed for the purchase of forms to elapse. DP I and DP II are election timetables. Without, going on a voyage of which of them is a valid timetable, I find as a matter of fact, that on DP I, the deadline for “sales of form” is on the 28th of November 2014 and on DP II, the deadline is on the 25th of November 2014. The Letter requesting for the reduction was dated on the 24th. The reply from MASSA-SRC was dated the 27th of November 2014. MASSA-IEC should have waited till the elapsement of time. Honourable students of The Faculty of Management Sciences could still have indicated interests before the deadline. The Doctrine of Necessity does not justify a purported amendment of MASSA-LASU Constitution to reduce the CGPA requirement from 3.0 to 2.5. I thus decide the first issue in favour of the appellant. I now proceed to Issue 3 on the Respondent’s brief of argument, which is: Whether the Petitioner/Appellant has proven his case beyond reasonable doubt to be able to sustain his prayers. The Appellant in addressing its Issue 1 addressed the mind of this court on this issue and based its arguments on the failure to meet the required 2/3 majority and on the irregular dating of RDIV. The respondent was in a dilemma as to how a letter dated the 27th of November 2014 referring to a sitting of Honourable members of the MASSA-LASU SRC on the 26th of November 2014 could have attached signatures dated the 25th of November 2014. The irregularity therein made him challenge the probative value of the document on the strength of Section 83(3) of the Evidence Act The Respondent in addressing Issue 3 argued strongly that: the complaints generically referred to as electoral malpractices which amount to non-compliance with electoral laws are criminal in nature. Indeed the claims of the appellant in this case are purely criminal in nature to wit; forgery of Exhibit RD4 and fraudulently allowing the Respondent to contest the election. Granted that an election petitions are sui generis and follow their own rules Oke v. Mimiko (2014) 1 NWLR (Pt. 1380) 225, they still are subject to some general rules of law. In CPC v. INEC (2012) 13 NWLR Pt. 1317 Pg.260 at 290, it was held that: The onus of proof of the allegation of corrupt practices – thus imputing criminal offences to the respondents. The onus on the appellant in this regard is as per Section 138(1) and (2) The Evidence Act and it has to be proved beyond reasonable doubt. However, in Oraekwe v. Chukwuka (2012)1 NWLR Pt. 1317 260 at 216, the Court of Appeal held that: Every established act of corrupt practice amounts to non-compliance with the provisions of the Electoral Act, but it is not every act of non compliance that would amount to corrupt practice because corrupt practice imputes a criminal element, the burden of which is proof beyond reasonable doubt... any allegation of corrupt practice must be proved beyond reasonable doubt, and the burden is on the petitioner to prove same. Contrary to what the respondent will want this court to believe not all allegations of electoral malpractice are criminal in nature as to require a proof beyond reasonable doubt. The Appellant has not alleged forgery of RDIV contrary to what the Respondent will want this Court to believe. The Appellant challenged the probative value of RDIV because of the irregular dating and failure to attach the minutes of the sitting of the MASSA-LASU SRC. This does not in any way allege the commission of a fraud. And thus, the burden of proof on the Appellant is on a balance of probability. It is for this, and the more detailed reasons already articulated by my Lord, that I find this appeal meritorious and allow the appeal. I make no orders as to costs and each party should bear their costs. I abide by all the consequential orders of my brother Yusuf Adebayo Ganikale JCA. Appearances: Salvador Ajibola The Appellant Y. A Oyebanjo T.A Adebesin A.M. Aderounmu The Respondent ………………………………………… …………………………………….. Damilola Joshua Aderinmola PCA Stephen kemi Adeyemi JCA ..……………………………………. Yusuf Adebayo Ganikale JCA
Posted on: Thu, 15 Jan 2015 19:40:09 +0000
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