Saturday 19 January 2013

EDO GUBER PETITION 2012: SUPREME COURT ERRED IN LAW BY BASING THEIR JUDGMENT ON TECHNICALITIES


Election Petition is a document filed by an aggrieved party to a sitting Tribunal or court to determine some electoral irregularities and non compliance with the electoral Act. The election petition filed by Charles Airhiavbere (Maj.-Gen rtd) against Governor Adams Oshiomhole of Edo State has reached the apex court, even before the final judgment of the tribunal.
The Petition itself raised some constitutional questions which mirror section 177 of our constitution when it said as per the following:-
Para. 12 (iv) The 1st Respondent who was purportedly returned as the winner of the said election was not qualified to contest for the said election for the office of the Governor of Edo State
24Your Petitioners aver that the 1st Respondent is not qualified to contest the said Governorship election in Edo State having not met the minimum qualification to contest for the said office of Governor of Edo State as provided for in the 2010 Electoral Act (as amended).
25Your Petitioners further aver that there is no nexus between the 1st Respondent and the academic qualifications he presented as his qualification. The Petitioners shall found and rely on Certificate True Copies of these qualification at the trial of the petition especially as depicted in FORM CF.001 submitted to the 3rd Respondent in 2007 and 2012 by the 1st Respondent.
In considering the above paragraphs, the tribunal conceded “from the manner paragraph 25 of the petition is drafted, it conveys the message challenging the academic qualifications of the 1st Respondent presented to INEC, particularly as in or along with Form CF001 in 2007 and 2012 do not belong to him. In other words a false declaration was made or the documents presented are false”
The Petitioner, proceeded to the Court of Appeal Holden in Benin-City to challenge the decision of the tribunal which ruled that qualification was a pre-election matter.
The Court of Appeal, placing heavy reliance on the Supreme Court, held that qualification of candidate to contest an election under the Electoral Act (as amended) is both a pre-election and a tribunal matter which both the High Courts and the relevant Election Tribunals have jurisdiction to hear and determine.
Not satisfied with the decision of the Court of Appeal, the adverse party proceeded to the Supreme Court to determine whether the issue of qualification was properly canvassed as a ground (not as a pre-election matter) in the petition filed by Charles Airhiavbere.
In deciding this all-important issue, the Supreme Court of Nigeria, through its panel of Justices curiously set aside its previous rulings on similar issues. The Petitioner cited the case of Hope Democratic Party Vs. INEC (2009), where the Supreme Court held in a judgment delivered by W.S.N. Onnoghen (JSC) “It should be noted that though election petitions are said to be sui generis, they are concerned with the political rights and obligations of people – particularly those who consider their rights injured by the electoral process and need to ventilate their grievances. Such people ought to be encouraged to do so with some latitude knowing that in the process of initiating proceedings to ventilate their grievances mistakes, such as those in the instant case may occur. Since the intention of the Electoral Act and other laws employed in litigation are geared towards ensuring that substantial justice is done to the parties at the expense of technicalities, any conclusion that tends to shut out an aggrieved party from the temple of justice by not hearing him on the merit out not to be encouraged in the interest of peace and democracy”.
C.M. Chukwuma-Eneh (JSC) in his concurring judgment said “However softly-spoken the above averments as per paragraphs 21 and 23 may be, there can be no doubt that they raise serious issues for adjudication under the constitution and the Electoral Act. By the cause of action as pleaded above in paragraph 21, the petition is clearly attainable.
The order striking out the petition vis-a-vis the petition tantamount to precluding of the petitioner from proceeding with his case, in other words, it is not afforded the opportunity to canvass its case at a hearing on the merit. This clearly contravenes the rules of natural justice as encompassed in section 36 of the 1999 constitution under fair hearing and so, it has undermined the underlying principle of the 1999 constitution of entrenching and deepening of democratic tenets and the Rule of law in this country”
F.F. Tabal (JSC) put the issue beyond question when he said “Although there is no identifiable paragraph of the petition with the grounds specifically set out therein, a global reading of the petition shows clearly that there are grounds for questioning the election…….. In view of the foregoing, the Court below was wrong to find that no grounds are stated in the petition”
The striking feature of this case is that the Supreme Court acknowledged no identifiable grounds in the Petition. However, after a global or community reading, it contrived grounds, not ground, to sustain the petition.
I watched with disbelief as the apex court went through excruciating pains on Friday, January 11, 2013 trying to distinguish the extant case, from the one cited above, when it stated that the facts were at variance with the sole ground and held that the trial tribunal was right to strike out paragraphs 12 (iv), 24 and 25 of the Petition. But then, the tribunal struck out those paragraph on ground that they raised pre-election matter and not that there were not ground of petition, a finding that has not been appealed to date.In so doing, the apex court drew strength from the case of PDP vs. Saror & ors (2011) and Suswan vs. ors (2011) where, according to the court, qualification was made a ground and held that in the absence of a Ground on non-qualification the court would have no jurisdiction to consider ANY AVERMENT that has to do with the non-qualification of the appellant, the facts and merit of the case notwithstanding.
In the instant case, the Judge held “where there are no grounds in a petition as was the case in HDP vs. INEC (supra) I can understand a Judge undertaking a global reading of the petition to find a Ground or Grounds that question the election, but I cannot understand a Judge adopting the same procedure in a case, such as this where the Petitioner expressly states the Ground on which he is questioning the election. It would amount to making a case the Petitioner to go on a voyage in search of Grounds to question the petition when the Petitioner has stated the Ground he relies on”
There is a clear case of contradiction in this ruling. The Supreme Court cannot in one breath say give a global reading to a petition with a view to finding Grounds and in another breath say once a Ground has been stated in a petition, all other averments and facts that point and support other grounds must be jettisoned. There is no law or rule of procedure that supports this pronouncement, I must dare say.
The Supreme Court cannot and should not sacrifice justice on the altar of technicalities, particularly as we have been made to believe that the days of raw technicalities are gone for good. The question to be resolved on this first issue is why the Supreme Court failed, refused or denied this petition a global reading when the facts of non-qualification were sufficiently pleaded.
The second leg of my disagreement with the Supreme Court is its decision to blame the counsel who prepared the petition when it held “It is clear to my mind that the issue of non-qualification of the appellant is not properly before the Court, and this is due to the blunder of counsel who prepared the petition” I beg to respectfully disagree with the honourable justices of the Supreme Court as the same court has held in several cases that the court cannot visit the fault of counsel on innocent litigants when it said “It is trite that the court normally do not form the habit of visiting the fault of counsel on an innocent litigant”
Nnaemeka-agu (JSC) in a concurrent judgment of the Supreme Court posited as follows: “…………….. But it has been recognized by our system of administration of justice that mistakes or even blunder of counsel may occur from time to time, but that it is wrong to deny a litigant the right to have his case decided on its merit because of the blunder, mistake or negligence of his counsel”.
The controversial ruling of the apex court on 11th January, 2013 is therefore a complete turn-around from the universal norms.
The Petitioner at page (2) of his petition at paragraph (8) titled GROUNDS OF THE PETITION complained of malpractices and non-compliance. Rather than include non-qualification in this paragraph, proceeded to give details of the latter until he got to paragraphs 12 (iv), (24) and (25) of the same petition when he mentioned the ground of non-qualification of the Respondent. Assuming this was a blunder on the part of the counsel that prepared the petition, should the litigant suffer this error at the expense of the merit of his case? The Supreme Court appropriately recognized this blunder of the counsel.

I think there is also need for the apex court to clarify a portion of its judgment which I found inappropriate when it said “The standards expected are for counsel in such a situation to advise his client accordingly and not waste judicial time by coming all the way to this court to see if he has a chance”. This statement is definitely directed at the Appellant who went to the Supreme Court, rather than the Petitioner who was dragged there. What exactly happened?
It would appear to me that the germane question of constitutional non-qualification raised by the Petitioner has been left at the mercy of technicalities. I think it is our constitution that is on trial. Nobody has told me what anybody stands to suffer in ensuring compliance with Section 177 of our constitution.
In the words of Tom Shaibu Yakubu (JCA) “……… I am of the firm and considered opinion that the integrity and credibility of the 1st Respondent would be better enhanced if the challenge, especially to his qualification as a candidate at the 14th July, 2012 election which threw him up as the Governor of Edo State, were ventilated and thrashed out/settled at the lower tribunal. I say no more”.
With the above submission, I humbly appeal to the CJN and NJC to, as a matter of urgent national importance, reconcile these contradicting pronouncements as the entire world is watching. One thing is however certain. The last has definitely not been heard in this obvious attempt to circumscribe a constitutional provision, using the courts as alibi.

Hanson K.O. Aimofumeh
Political and Public commentator
Lagos

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