The Nation Newspaper

Category: Law

  • Is Nigerian Law School still excellent?

    Is Nigerian Law School still excellent?

    Almost a year ago, while appraising the efforts of the Nigerian  Law  School Director-General  Dr. Olanrewaju Onadeko in the face of the challenges facing the over 52 years old school, I concluded thus: “We must commend Mr. Onadeko and all the Law School Staf , both academic and non-academic for refusing to compromise on standards despite huge pressure from some  parents . Law is a serious course that requires the student to put his best foot forward”. The title of my piece then was: Much Ado about Law School examination failure.

    In similar vein, Chairman of the Council of Legal Education, owners of the school, OCJ Okocha was quoted by major newspapers during the same period as saying: “The reforms are on going, and the Council is determined to ensure that the said reforms are translated into the delivery of a higher quality of legal education throughout Nigeria.”

    Flowing from this, a cursory look at the results for this year will reveal that the managers of the school led by Onadeko are on upward swing. Presenting the new wigs to the Body of Benchers under the Chairmanship of Chief Justice of Nigeria, Justice Mahmud Mohammed for admission into the Bar, Onadeko remarked: “ The May 2015 Bar Final examinations was undertaken by 2,851 students of the April  entry class of the 2014/2015 School Year earlier referred to. They are generally dubbed the ‘backlog class’, but their performance has obliterated the backlog tag, They achieved 68.5% outright pass, and 2.9 per cent conditional pass. The two together give a success figure of 71.4 per cent. Of their numbers, four candidates attained the first class grade, 109 obtained the second class upper grade, 418 were classified in the second lower division and 1, 422 attained the pass grade. In sum, the total number of passes was 1, 953, while 815 failed outright”.

    Talking about sterling performance of the students during this dispensation, let us see how Daily Trust Judicial Editor, Adelanwa Adegboye captured “upward swing” in the school. Writing under the caption: Fatima makes history at Law School, he writes: “A genius, Fatimah Bombom made history on Wednesday, 21 October 2015 when she was honoured with standing ovation by the CJN, other members of the Body of Benchers and the CLE, other dignitaries and the new wigs (her colleagues just called to Bar). Fatimah broke the existing record in the Nigerian Law School by bagging nine separate awards compared to existing record of seven awards ever received at the Call to Bar.”

    Adelanwa, a lawyer, added that: “The awards include the Best Student of the Year (1st Prize) donated by Sir Adetokunbo Ademola, Dr Taslim Elias and Justice Atanda Fatayi- Williams; the Council of Legal Education Star Award in Corporate Law Practice donated by Chief Adegboye Awomolo (SAN); Best Overall Female Student of the Year award donated by National Association of Women Judges; and Best Female Student in Criminal Litigation award by Mrs. Oluwatoyin Doherty.

    “The rest are Best Student in Civil and Criminal Litigation award donated by Chief Joe-Kyari (SAN); and the prize for 1st Class Students donated by the Director General of the Nigerian Law School. She also bagged Second Class Upper  in her LL.B degree at the University of Abuja.”

    On the magic wand for this success, Onadeko said: “I am glad to report that there is a rising level of focus and diligence in our students. As I noted in my speech at the Call to the Bar ceremonies of November 2014, we have made it a point of duty to encourage them to: (i) attend all lectures including interactive sessions  (ii) respond by participation in given assignments and group activities; and (iii) unhesitatatingly approach academic staff for clarification of any unclear issues that may arise in their course of duty. Experience has shown that the best way to comprehend a subject is to have it expounded by way of instruction, through a person with proven knowledge in the field. CLE’s prescription is that studying at the Nigerian Law School must only be undertaken on full time basis. This position is almost as old as the institution itself.”

    Onadeko also touched on the phased deployment of Information Communication Technology; issue of violation of admission quotas  by some faculties of law; improved security issue and the need to reintroduce pupillage programme for new entrants to the legal profession.

    While admitting the new wigs into the Bar, Justice Muhammed drew their attention to provisions of the  Rule of Professional Conduct and warned them that their violation “will amount to professional misconduct.” He singled out the Nigerian Bar Association (NBA) for commendation, saying:  “May I use this medium to applaud the NBA for successfully organising the Annual General Conference in our Nation’s capital, Abuja. I must say that the Conference was well attended and the sessions were intellectually stimulating. I further commend the Bar for being an able partner in reform as we continue to promote and ensure the advancement of the profession.”

    Justice Muhammed also agreed with Dr. Onadeko said the new wigs  would do themselves a lot of good if they take to pupilage because “it is the opportunity that you have to groom yourselves and develop a solid foundation for your future career.”

    All said and done, I doff my hat for Onadeko and his team for this upward swing that must not be lowered.

     

    • Njoku, a lawyer, is also the Executive Director, Constitutional Watch, Lagos.

     

  • Book on appellate court judgments for presentation

    A book: Hon. Justice J.A. Fabiyi: Landmark judgments (being selected leading decisions of the Supreme Court and the Court of Appeal) will be presented on November 26 at the Court of Appeal Ceremonial Courtroom, Three Arms Zone, Abuja.

    Chief Justice of Nigeria (CJN) Justice Mahmud Mohammed will chair the event, while Dr Arthur Eze will be the chief presenter. Katsina State governor Bello Masari will be a guest of honour.

     

     

  • Only a validly constituted tribunal can determine a petition

    Only a validly constituted tribunal can determine a petition

    FACTS

    The third respondent conducted governorship election in Delta State. At the conclusion of the election in question, the Appellant was declared the winner and returned by the 3rd Respondent. The 1st and 2nd Respondents were dissatisfied with the declaration of the Appellant as the winner of the said election. Consequently, both the 1st and 2nd Respondents filed in the lower Tribunal the petition (EPT/DT/GOV/32/2015). The Appellant filed a reply to the said petition and raised a preliminary objection challenging the jurisdiction of the lower tribunal to entertain the petition. The appellant equally filed a separate motion on notice once again challenging the jurisdiction of the lower tribunal to determine the petition for being incompetent. Upon taking argument of the respective parties, the lower tribunal in a reserved ruling granted the application. The present appeal is against ruling delivered by the Chairman and the two other members of the Tribunal.

     

    Appellant’s issues for determination

     

    The Appellant’s brief raised two issues for determination viz:

    1. Whether the decision of trial tribunal made on 30th June, 2015 is not a nullity having regards to the provisions of paragraph 27(1) and (2) of the 1st Schedule of the Electoral Act, 2010 (as amended) and Section 23 of the Federal High Court Act, 2004.
    2. Whether the trial Tribunal’s decision that by virtue of paragraph 12 (5) of the 1st Schedule to the Electoral Act, 2010 (as amended) all objections irrespective of whether they are on jurisdiction or competency of the petition, must be heard along the substantive petition, is not erroneous in law.

     

    Appellant’s submission

     

    The submission of Appellant on the first issue is that the decision of the trial Tribunal is a nullity by virtue of the provisions of paragraph 27(1) & (2) of the First Schedule to the Electoral Act, 2010 (as amended), and Section 23 of the Federal High Court Act, 2004. It was contended, that paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (Supra) stipulates the composition of the Election Petition Tribunal, with regards to the determination of interlocutory questions and matters, to be the Chairman of the Tribunal or the Presiding Justice of the Court (of Appeal). It was further contended, that the word “may” used in paragraph 27(1) of the First Schedule (Supra) connotes mandatory adherence to the said provisions. See OKONKWO VS. UBA PLC (2011) 16 NWLR (Pt. 1274) 614 @ 628 paragraph E; BAMISILE VS. OSASUYI (2007) 9 NWLR (Pt.1042) 225 @ 270 – 271 paragraphs G – C; (2007) LPELR-8221(CA).  The learned silk accordingly urged the Court to resolve the Issue No. 1 in favour of the Appellant, and set aside the proceedings of the trial Tribunal and the decision therefrom.

    On Issue No. 2 it was submitted by the learned SAN, that the lower Tribunal acted in error when it held that all objections, irrespective of whether they are on jurisdiction or competency of the petition, must be heard alongside the substantive petition. It was contended that the objections of the Appellant herein raise issues of jurisdiction, which are the life-wire or spinal cord of any case, thus must be handled before any step is taken in any proceedings. The Court was urged to so hold, and resolve the issue No. 2 in favour of the Appellant. Consequent whereupon, the Court was urged to invoke Section 15 of the Court of Appeal Act, 2004 to hear and determine Appellant’s preliminary objections in question. See INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 @ 616 paragraphs A – B; DAPIANLONG VS. DARIYE (2007) 8 NWLR (Pt. 1036) 332 @ 404 paragraphs C – D; (2007) LPELR-928(SC).

     

    Respondents’ issues for determination

     

    1st and 2nd Respondents raised two issues for determination viz:

    1. Whether or not the ruling of the Governorship Election Tribunal delivered on 30/06/2015 is a nullity on the ground that the Tribunal heard the application and delivered the ruling instead of only the chairman hearing the application and delivering the ruling?
    2. Whether the Tribunal was wrong in its decision that applications and objections intended to terminate the petition without hearing it on its merit be taken along with the hearing of the substantive petition?

    3rd-6th Respondents adopted the issues formulated by the Appellant.

     

    Respondents’ submissions

     

    1st and 2nd Respondents on Issue No. 1 submitted that the Tribunal below acted within its powers and jurisdiction in the ruling delivered on 30/06/15 in question, to the conclusive effect that the preliminary objections were to be heard along with the petition. Regarding the question as to the composition of the Tribunal, which heard the oral application and delivered the ruling on 30/06/15, it was allegedly not objected to by Appellant at the pre-hearing session on 23/06/15. That there is no basis for the Appellant’s complaint, having participated fully in the proceeding which resulted in the ruling in question. Thus, the Appellant is deemed to have acquiesced and waived any right to question the composition of the Tribunal of three (members) hearing and determining the issue. It was contended, that the alleged non-compliance with paragraph 27(1) of the First Schedule is only an irregularity which parties can waive. The issue of three members of the Tribunal sitting, hearing and determining the application does not go to the issue of jurisdiction; because paragraph 27(1) of the 1st Schedule (Supra) is a procedural rule, which does not raise the issue of jurisdiction see SA’EED VS. YAKOWA (Supra); BELGORE VS. AHMED (Supra).

    On issue No. 2 it was submitted that the decision of the Tribunal, to the effect that objections and motions intended to terminate the petition without hearing on the merit be heard along with the substantive petition, is perfectly in order. See paragraph 12(5) of the First Schedule to the Electoral Act 2010 (as amended); Section 38 of the Electoral Act, 2010. see SA’EED VS. YAKOWA (Supra); BELGORE VS. AHMED (Supra). Furthermore, paragraph 18(2)(b) of the First Schedule (Supra) gives the Tribunal the discretion on how to conduct its proceedings. See NAA VS. OKORO (1995) 6 NWLR (Pt. 403) 510 @ 523 – 524; SARAKI VS. KOTOYE (1990) 4 NWLR (Pt. 143) 144 @ 171 paragraph G. The Court was thus urged to resolve the Issue No. 2 against the Appellant, and dismiss the appeal in its entirety.

    Regarding the Appellant’s prayer for invocation of the power of the Court under Section 15 of the Court of Appeal Act, 2004, it was argued that there is no valid basis known to law upon which the Court at this stage can hear and determine the issues in question. That the hearing of the petition has not commenced.

    The 3rd–6th Respondents’ adopted the appellant’s issues and urged the Court to allow the appeal.

     

    Determination of the appeal

     

    In determining the appeal the Court adopted the two issues raised by the Appellant.

    On issue 1 The Court considered the provisions of the First Schedule to the Electoral Act, 2010 (as amended) and Section 23 of the Federal High Court Act. It was stated by the Court that most ironically, however, contrary to the contention of the learned silk, the decisions of the Court in the cases of ADELEKE APAPA VS. INEC (Supra) and DR. WALE OKEDIRAN VS. AGBOOLA HOSEA AYOOLA (Supra), et al, undoubtedly no longer represents the correct position of the law regarding the provision of paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended). That indeed, the question of compliance or otherwise with any provision of the First Schedule to the Electoral Act, 2010 (as amended), inclusive of paragraph 27(1) thereof, has no bearing whatsoever to jurisdictional issue. That at best, the question of compliance or non-compliance with paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended), may amount to an irregularity only, which does not in any way go to the root of jurisdiction. See MOHAMMED DELE BELGORE, SAN & 2 ORS VS. ABDULFATAH AHMED & 3 ORS (2013) 8 NWLR (Pt. 1355) 60. Instructively, in BELGORE VS. AHMED (Supra), that the Apex Court held, inter alia, most authoritatively, that – Jurisdiction is only donated by the constitution and/or statutes. That the First Schedule to the Electoral Act, 2010 being rule of procedure for election petitions, do not confer jurisdiction. See  SA’EED VS. YAKOWA (2013) 7 NWLR (Pt. 1352) 124, BELGORE VS. AHMED (Supra), DADA VS. OGUNREMI (1962) 2 SCNLR 417.

    That regarding the attitude of Court to non-compliance with rules thereof, the Supreme Court laid down a proposition to the effect, that the current and prevailing principle in the administration of justice is that where in the beginning or in the course of the proceedings, a party commits an omission or mistake in the laid down practice and procedure, it can be regarded as an irregularity which the tribunal or Court can and should rectify or even ignore so long as it is satisfied that the omission or mistake occasions or is incapable of occasioning any injustice to the other party. That this is the principle deliberately engrafted by the legislature into paragraph 53 (1) (2) and (4) of the First Schedule to the Electoral Act, 2010 (as amended). See BELGORE VS. AHMED (Supra) @ 91 – 92, paragraphs G – B per Tabai, JSC; SA’EED VS. YAKOWA (Supra) 1 @ 144 – 145 paragraphs H – B per Tabai, JSC. That against the backdrop of the foregoing far-reaching reasoning, it is obvious that the provisions of paragraph 27(1) of the First Schedule to the Electoral Act 2010, as amended notwithstanding, by virtue of Section 285(2) & (4) of the 1999 Constitution, (as amended), it is only the Tribunal as duly constituted of not less than three members (including the Chairman) that has the exclusive jurisdiction to entertain, hear and determine petition questioning the election of a person as Governor of a State. Arguably, the proceedings in an election petition include all matters, questions or issues that may arise in the proceedings up to the final determination of the petition. That the exclusive jurisdiction accorded the Tribunal under Section 285(2) & (4) of the 1999 Constitution, (as amended), undoubtedly includes the power to deliver interlocutory as well as final decisions in the petition. See OMEJEB VS. ODUM (2011) ALL FWLR (Pt. 600) 1328, NGIGE VS. OBI (2006) NWLR (Pt. 999) 1 @ 209 – 210, NGIGE VS. INEC (Supra) per Agim, JCA, @ 22 – 23; LPELR-25413(CA).

    It was held to be obvious that paragraph 27(1) of the First Schedule to the Electoral Act, 2010 (as amended) is ultra vires the provision of Section 285(4) of the 1999 Constitution (as amended), regarding quorum of the Tribunal when it sits to hear and determine interlocutory questions and matters in the election. Yet, by virtue of the provisions of Section 1(3) of the 1999 Constitution, the supremacy of the constitution over all other laws is not in doubt. Thus, in the event of any law being inconsistent with the provision thereof, the constitution shall prevail, and that other law shall, to the extent of the inconsistency, be declared void and of no effect whatsoever see Section 1(1) and (2) of the 1999 Constitution, (as amended); INEC VS. MUSA (2003) 1 SC (Pt. 1) 106; (2003) LPELR-1515(SC),  OKOCHA VS. INEC (2010) LPELR (SC) 4718; OBASANJO VS. YUSUF (2004) 9 NWLR (Pt. 877) 144 @ 183; (2004) LPELR-2151(SC)  SENATOR NGIGE VS. INEC (Supra); LPELR-25413(CA). Consequently, issue No. 1 was resolved against the Appellant.

    On issue No. 2 It was held that most instructively, the provisions of paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended) were introduced by the ELECTORAL (AMENDMENT) ACT, (No. 10) 2010, to the following effect:

    “38. The First Schedule to the Electoral Act, 2010 is amended – (c) in paragraph 12, by inserting a new subsection (5)

    (5) A respondent who has an objection to the hearing of the petition shall file his reply and state the objection therein, and the objection shall be heard along with the substantive petition.”

    It was held that from the unambiguous wordings as couched in the provision of paragraph 12(5) of the First Schedule to the Electoral Act, 2010 (as amended), the word ‘shall’ therein is mandatory, and ought therefore to be so construed. See BELGORE VS. AHMED (Supra) @ 92 – 93 paragraphs C – E per Tabai, JSC. That in the instant case, the Appellant has failed to establish, that the lower Tribunal has exercised the discretion thereof wrongly thus an appellate Court ought not to interfere with the exercising of discretion by a Lower Court, unless there is every cogent reason to do so. See NAA VS. OKORO (1995) 6 NWLR (Pt. 403) 510 @ 523 – 524 per Uwais, JSC (as His Lordship then was); GADI VS. MALI (2010) 7 NWLR (Pt. 1193) 225 @ 289 paragraphs E – H.

    As regards the question of whether the Court can exercise the power thereof under Section 15 of the Court of Appeal Act, 2004, and proceed to assume jurisdiction and determine all the preliminary issues raised by the Respondents before the Tribunal below. It was held that in the instant case, it’s obvious that there is no cogent basis whatsoever to warrant the Court to embark on the determination of the preliminary objections at this point and stage in time for the reasons adduced by the 1st and 2nd Respondents. See OYEYEMI VS. IREWOLE LOCAL GOVT. (1993) 1 NWLR (Pt. 270) 462; (1993) LPELR-2881(SC) A.N.P.P. V. R.E.C., AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453; (2008) LPELR-8322(CA). In the circumstance, the Issue No. 2 was equally resolved against the Appellant.

    On the whole in a unanimous decision having resolved both issues against the Appellant, the appeal failed, and was dismissed. Consequently, the ruling delivered by the lower Tribunal on 30/06/2015 in Petition No. EPT/DT/GOV/32/2015 was affirmed.

     

    Edited by LawPavilion

     

    Citation: (2015) LPELR-25656(CA) 

     

     

  • Lagos magistrates urged to dispense justice without fear, favour

    Lagos State Attorney-General and Commissioner for Justice, Mr. Adeniji Kazeem, has urged magistrates in the state to dispense justice without fear or favour.

    The A-G gave the advice last week during his visit to the Samuel Ilori Courthouse in Ogba.

    During the visit, Adeniji held meetings with some of the magistrates handling special offences.

    He charged the magistrates not to relent in ensuring that maximum penalties are applied in deserving cases in order to serve as deterrence.

    He emphasised that this is the only way to entrench the rule of law and an orderly society.

    The justice commissioner, who also visited the Lagos State Environmental and Special Offences Enforcement Unit Office in Alausa, reiterated Lagos State Governor Akinwunmi  Ambode’s zero tolerance for traffic, environmental and other related offences.

    At the Task Force headquarters, he was received by the Chairman Supol Olubukola Abe, who assured the A-G that he would not relent in his efforts to stamp out all traffic, environmental and other related offences.

    In his response, the A-G warned that the government’s emphasis on persuasive and civil enforcement should not be mistaken for weakness.

    He promised to bring the full weight of the law on offenders and to draft additional prosecutors to the Special Courts.

     

  • Lawyers: Prosecute building laws violators

    Lawyers: Prosecute building laws violators

    Building collapse is a recurring problem. Experts finger absence of strict enforcement of building codes, corruption and the low rate of prosecution of offenders as some of the causes. How can it be reduced? What sort of compensation do victims deserve? Whose duty is it to prosecute owners of collapsed buildings or culpable engineers? Lawyers believe the problem will remain until those who violate building laws are prosecuted. JOSEPH JIBUEZE sought their views.

    Last Wednesday, a three-storey building on Swamp Street, Odunfa, Lagos Island, collapsed. Many were trapped. An octogenarian, Mrs. Mistura Amodu, died in hospital hours after being rescued from the rubbles. This is just one of many incidences of building collapse across the country.

    The General Manager, Lagos State Building Control Agency, Sola Adeigbe, said the building was marked for non-destructive integrity test to ascertain its structural stability before it caved in.

    “Once a building has been detected to have a defect, we ask building owners to take the test before further actions are taken. We gave an ultimatum for the test which had expired before the collapse; they responded by saying they will do the test. But, unfortunately, the incident occurred.

    “The law is explanatory enough; if only our people will comply; it is like a suicide mission when people occupy a distressed building. The agency has sealed about 1,104 buildings from June till date across the state due to defective or illegal construction,” Adeigbe said.

    According to a building expert, Walter Emiedafe, between 1974 and 2010, 401 lives were reportedly lost from over 60 collapsed buildings in Nigeria. Several more lives were lost but have not yet been accounted for nor reported.

    Privately-owned buildings – commercial or residential – accounted for the highest number of collapsed buildings. A study revealed that more than 70 per cent of the reported cases of building collapse in Nigeria stemmed from the informal sector.

    Analysts say the building construction process demands careful supervision, monitoring and valuation to ensure that the requirements and specifications for quality assurance are strictly adhered to.

    But Nigeria, it appears, has become one of the countries with a high incidence of building collapse. Nearly every month, there are gory tales of building collapse with the attendant loss of lives, property and investments. Many are injured or maimed for life.

    Major cities like Lagos, Ibadan, Kano, Kaduna, Onitsha, Enugu, Port Harcourt, Calabar, Abuja, and others have had their share of building collapse over the years.

    Observers have criticised the inability of the authorities to put an end to the menace. Recently, the Abu Naima Primary and Secondary School building in Jos, Plateau State collapsed killing 10 children.

    In the same week, seven people escaped death in Yaba, Lagos when a four-storey building under construction collapsed on them.

    Similarly, two buildings under construction in Lekki and Surulere, Lagos State, collapsed.

     

    Why buildings collapse

     

    Non-compliance with laws on building construction and maintenance account for some of the collapses. A tribunal of inquiry set up by Lagos State in 2013 identified weak implementation, as well as deliberate flouting of regulations and gross corruption across board as factors hindering the effectiveness of construction and building laws.

    Buildings collapse due to several factors, such as use of low quality materials, use of incompetent craftsmen leading to poor workmanship, weak supervision, poor building design and planning, natural disaster, non-compatible soil type, non-compliance with specifications/standards by developers/contractors, incompetent contractors, lack of enforcement of building codes by the relevant town planning officials and poor monitoring, among others

    Other factors are poor maintenance culture, faulty construction methodology, poor town planning approval/development monitoring process, non-enforcement of existing laws, bribery and corruption and structural defects.

    Last year, Lagos State sealed 1,939 structures which flouted building laws. Some of the violations included buildings without approvals, use of substandard materials and altering approved building designs.

    The sealed buildings were among 7,281 served notices for contravening the relevant building laws.

    The state said violation of physical planning laws was a major cause of building collapse.

    Some experts as well as anti-corruption crusaders have insisted that buildings would continue to collapse as long as builders continue to use the 32.5-grade cement.

    Standards Organisation of Nigeria (SON) Director-General Dr. Joseph Odumodu, in a memorandum, urged the House of Representatives to investigate the composition and pigmentation of cement in the country.

    He said: “At the moment, two cement types are prevalent in the Nigerian market: 32.5-grade and 42.5-grade, with the former, constituting about 50 per cent of the cement produced in Nigeria. Two years back, it accounted for over 85 per cent.

    “The 32.5-grade is suitable for plastering, block-making and light concrete activities, while 42.5-grade and above are for more solid structures and heavy concretes. Using 32.5-grade type of cement for works that require 42.5 type of cement would amount to inappropriate application.”

     

    Legal requirements circumvented

     

    According to observers, legal requirements for building a house are hardly observed. In Lagos, for instance, before a house is built, certain necessary licences and permits have to be obtained, as well as completing required notifications and inspections.

    The first stage is obtaining soil investigation report to ensure the stability of the foundation. The law says three-storey (or more) residential or office buildings would need such a report. It is also needed for a commercial warehouse.

    Another requirement is to obtain an Environmental Technical Analysis Report, which is needed to check whether the project is viable and the impact it will have on the immediate environment.

    After obtaining a certified true copy (CTC) of the survey plan and CTC of the land ownership title from the Land Registry, a development permit from the Lagos State Physical Planning Authority (LASPPA) is required. This authorises construction.

    Legally, a pre-approval inspection is required to verify that the land is where the owner has stated it is and to verify that construction has not already started.

    For construction involving a structure of more than two floors, the developer or owner must submit a general contractors all-risk insurance policy certificate to the Building Control Agency along with the application to begin work.

    A builder is also required to obtain certificates of structural stability from the Lagos State Material Testing Laboratory.

    The law also requires the Fire Service department to inspect the building and issue a report. A certificate of completion and fitness for habitation is also required from the Lagos State Building Control Agency.

    In 2013, a Lagos tribunal on building collapse said laws regulating the building industry were adequate, but were rendered ineffective by non-adherence and crass indiscipline, among others.

     

    How to prevent collapses

     

    Observers say there are many regulatory authorities in the manufacturing, importation, environment and property sectors whose duties are to regulate the property and allied sectors – from manufacturing/importation of building materials, supply, storage, citing and construction, up to the finishing stage.

    What is lacking, they said, is the commitment of regulatory authorities to their duties. According to them, there is an urgent need for stricter enforcement and complete overhaul of the  building industry.

    Town planning officials, experts say, must desist from issuing building permits to non-professionals, thereby making the construction industry an all-comers affair; as well as giving dubious approvals to sub-standard buildings.

    Regulators must also ensure that buildings are not illegally raised on the same foundation. Also, buildings found to be structurally defective and marked for demolition should not be occupied by persons.

     

    The Synagogue case

     

    The Federal High Court in Lagos is set to hear a suit seeking to stop Governor Akinwunmi Ambode from enforcing a coroner’s ruling indicting the Synagogue Church of All Nations (SCOAN) in the collapse of its guest house.

    The governor had pledged to enforce the verdict. He vowed to seek justice for the victims, no matter the circumstances.

    He has ordered law enforcement agencies to immediately arrest the indicted persons and enforce the verdict.

    But the engineers – Oladele Ogundeji and Akinbela Fatiregun – filed two suits against the Lagos Commissioner of Police, COREN, the state Attorney-General and the District Coroner, Mr. Oyetade Komolafe, a magistrate.

    They are challenging the July 8 verdict on the death of 116 persons in the building crash.

    Ogundeji and Fatiregun were accused of criminal negligence in the building’s construction. The coroner recommended them for criminal prosecution.

    Among others, they want the court to perpetually restrain the Attorney-General or any officer under his authority from initiating or commencing criminal proceedings against them on the basis of the coroner’s findings and recommendations.

    Justice Buba has adjourned the case to November 2 for ruling on pending applications.

     

    Prosecute offenders

     

    Experts say building collapses will remain a problem until those who violate building laws are prosecuted.

    Worried at the unending spate of building collapse in the country, the Council for the Regulation of Engineering in Nigeria (COREN) proposed the death penalty for owners of such faulty properties.

    It made the recommendation at a three-day public hearing organised by the House of Representatives’ Ad-Hoc Committee on the “composition and pigmentation of cement.”

    A former Chairman, Nigerian Institute of Architects, Mrs Abimbola Ajayi, said: “Although there is provision for summary trial of violators and offenders in the law, there is no record of persons prosecuted or sanctioned for incidence of building collapse by the Ministry of Justice, the Nigeria Police and other law organs because of political, cultural, administrative and other interventions.”

    Lawyers said the government should ensure that corrupt building regulation officials found to be culpable in any building collapse should be prosecuted and made to serve long jail terms to serve as deterrent to others.

    Besides, they said a policy should be put in place to ensure that professionals connected with collapsed building should not only have their licences withdrawn, they should be made to face the full weight of the law.

    A constitutional lawyer, Mr Ike Ofuokwu, said victims of collapsed buildings deserve compensation.

    His words: “There is absolutely no doubt that the government at all levels has totally failed in its regulatory and supervisory roles when buildings are being erected or renovated.

    “They are more concerned and interested in collecting monies for physical planning approval and sundry levies without adequate supervision of the building project.

    “The officials who ought to exercise supervisory functions are busy seeking gratification from the builders and once this is gotten, they turn the other way.

    “In addition, if nothing is done to regulate the business of building and diligently prosecute offenders as well as revoke the ownership of the property in issue, then we should expect more of this national shame and embarrassment.

    “The parliament should come in here and enact laws that will compel owners and / or developers of the offending properties, in conjunction with the regulatory agency if found to have connived with the builders or failed in its duty, to pay adequate compensation to victims and their dependents.

    “Engineers who supervised or appended their signatures to such buildings should be made to appear before the disciplinary committee of their professional body.

    “If found guilty they be made to face very stiff sanctions and have their certificates withdrawn where necessary.”

    Lawyers said officials must not only ensure that occupants of buildings marked for demolition are evacuated, such persons should be prosecuted.

    A lawyer, Mrs Judith Musa, said importers and manufacturers of sub-standard building materials as well as contractors and landlords found to be culpable in any incident of building collapse should be severely punished according to the law.

    Lagos lawyer Jonathan Iyieke said it falls within the powers of the Attorney-General to prosecute all crimes, including negligence in building collapse and corruption associated with it.

    According to him, building collapse resulting in death due to criminal negligence may amount to homicide and is therefore a serious crime.

    “It’s not in doubt that the prosecution of offences of serious nature as homicide or culpable homicide falls within the powers of Attorney General of the state or of the federation as the case maybe.

    “Where death occurs due to negligence of a professional advice, the body responsible for granting licence for that profession should be sued together with the negligent professional for damages and punitive compensation.

    “Although, there is no amount of damages that can  pay for lives lost in a building collapse, effective prosecution of culprits will serve as a deterrent to the multiplying culprits in our society,” Iyieke said.

     

     

  • Group seeks enforcement of migrants’ rights

    Group seeks enforcement of migrants’ rights

    A group, the Network of Migration Research in Africa (NOMRA), has called for the enforcement of the rights of migrants, both regular and irregular ones.

    It urged the media to put more effort in reporting issues of migration.

    These were contained in a communiqué issued at the end of a two-day training for media practitioners organised by NOMRA in Lagos.

    The group said media houses should have immigration desks to adequately cover migration issues.

    Story ideas were explored at the training, including the need to highlight conditions of Internally Displaced Persons (IDPs) and their camps, state of Nigerians in prisons abroad, executions in foreign countries without fair trial, state of embassies abroad, among other rights abuses of, and by, migrants.

    The training was part of the European Union (EU) funded “Promoting Better Management of Migration in Nigeria”.

    The project aims to contribute towards improved migration governance.  It is jointly implemented by the International Organisation for Migration (IOM) and United Nations Office on Drugs and Crime (UNODC) with a focus to manage regular and irregular migration.

    Key activities include building capacity of government officials to collect data,  engage diaspora, protect migrants’ rights and welfare, strengthen Civil Society Organisations (CSO) involvement in the migration sector, and formulate national-level policy and strategy.

    Activities also cover major technical areas such as improvement of border management, migrant screening/holding centres, visa policies and procedures and overall approaches to training of government staff working in these areas.

    The project is implemented in close collaboration with several key Nigerian partner agencies including the Federal Ministry of Labour and Productivity, National Bureau of Statistics (NBS), National Commission for Refugees Migrants and Internally Displaced Persons (NCFRMI), National Population Commission, Nigeria Immigration Service (NIS) and Nigeria National Volunteer Service (NNVS).

    Among others, the project has supported the establishment of a Technical Working Group (TWG) on migration and development comprising government representatives, the civil society and the academia.

     

     

     

  • Lawyer challenges NIC’s powers

    Lawyer challenges NIC’s powers

    A Lagos-based lawyer, Olumide Babalola, has asked the Federal High Court in Lagos to determine whether judgments of the National Industrial Court of Nigeria should be final.

    He is contending that Section 243 (2)(3) of the 1999 Constitution, which limits the right to appeal judgments of the NIC, offends the principle of fair hearing provided for in Section 36 of the same Constitution.

    He sued the Attorney-General of the Federation and the NIC President.

    Babalola wants the court to determine “whether by the interpretation of the 1999 Constitution, the decision of the NIC on matters listed under Section 254(c) of the Constitution is final and should be so interpreted.”

    He also wants the court to determine “whether the literal interpretation and application of Section 243 (2)(3) of the Third Alteration Act 2010 and the Constitution would not inflict untold hardship on parties affected by the decision of the NIC and continously violate litigants’ right to fair hearing as guaranteed by Section 36 of the Constitution.”

    In a 12-paragragh supporting affidavit deposed to by himself, Babalola said he found “the said provision a bit draconian and contrary to the constitutionally guaranteed right to fair hearing.”

    “Such constitutional provisions as Section 243(2)(3) of the 1999 Constitution, if interpreted literally with its implication, would constantly deprive Nigerian citizens their right to adequately ventilate their grievances through the hierachy of the courts.”

    Babalola is urging the court to declare that “by virtue of Section 254(d)(i) of the 1999 Constitution, the NIC is a court of coordinate jurisdiction, which has same power as the state and federal high courts, hence the right of appeal from the NIC cannot be limited.”

    He also wants the court to declare that “by virtue of Section 243 (2)(3) of the 1999 Constitution, the National Industrial Court’s decision is not final in respect of matters listed under Section 254(c) of the Constitution.”

    But the NIC, through its lawyer, Chief Gani Adetola-Kaseem (SAN), has filed a preliminary objection, challenging Babalola’s locus standi to file the suit.

    Adetola-Kaseem also argued that the NIC is not a juristic person and cannot be sued.

    Besides, he described Babalola’s suit as one which “raises academic rather than live issues, contrary to the established principle that the court is established to deal with and resolve live rather than academic issues.”

    The senior advocate said: “It is instructive that all the reliefs sought by the plaintiff are declaratory in nature and the plaintiff has sought no consequential order.

    “It is also instructive that although the plaintiff’s summons is supported with an affidavit of 12 paragraphs, there is nothing in the said affidavit to suggests that this action arose from a live issue currently pending before the court or that the plaintiff has suffered or is at imminent risk of suffering any injury to himself or anyone else which this action is supposed to remedy.”

    Justice Mohammed Idris has adjourned to November 13 for ruling on the preliminary objection.

     

  • Adesina, Ubani for NAJUC award

    Former Lagos State Chief Judge, Justice Ayotunde Phillips, Special Adviser to President Mohammadu Buhari on Media and Publicity, Mr. Femi Adesina and former Chairman, Nigerian Bar Association (NBA), Onyekachi Ubani will on Thursday be honoured by the National Association of Judiciary Correspondents (NAJUC), Ikeja Branch.

    According to a statement signed by NAJUC Chairman, Akinwale Akintunde and Chairman, NAJUC 2015 Annual Lecture Committee, Henry Ojelu, the three will be presented with outstanding leadership awards at this year’s NAJUC lecture taking place at the Osun Hall of the Airport Hotel, Ikeja.

    The theme of the Lecture which will have Lagos State Chief Judge, Hon. Justice Olufunmilayo Atilade as Chief Host is: Effective Justice System as Panacea for Change.

    Akin Oyebode, Professor of International Law, University of Lagos is the Keynote Speaker, while Chief Layi Babatunde (SAN) will chair the event.

    The theme will be discussed by Mumuni Adetokunbo, Executive Director, Socio-Economic Rights & Accountability Project, SERAP; Joseph Otteh, Executive Director, Access to Justice, A.C.P David Ighodo, Force Compol Legal, Nigeria Police and Opeyemi Bamidele, a former member of the House of Representatives.

     

  • Attack on judges: self-defence or self-help to the rescue?

    Attack on judges: self-defence or self-help to the rescue?

    A week after the September 11, 2001 attack, President Bush told a joint session of the Congress: ‘’whether we bring our enemies to justice or bring justice to our enemies, justice will be done’’.

    At this juncture,  Nigerian judges must come to terms with, and tackle three sets of enemies: the few judges in their midst, driven by greed and avarice and know no honour politicians, who go about painting judges in grotesque pictures just to cover up their failures, and lastly, lawyers, who collected monies from litigants and pocketed same, but return to explain to his client that other parties bided higher, and at any given opportunity, they lend voices to judicial corruption discourse.

    If a judge can file a petition against a sitting governor in Osun State, demanding his impeachment, there is nothing stopping a judge from calling on judicial authorities for the discipline of a fellow judge he/she considered desecrating the temple of justice.

    The leadership of the Judiciary cannot afford too, to keep such elements in the system.

    To effectively tame the remaining two sets of enemies perhaps, require some illustrations.

    In 1841, an essay by Ralph Waldo Emerson, entitled Compensation, was published suggesting “every man in his lifetime needs to thank his faults” and “acquire habits of self-help” as “our strength grows out of our weakness.”

    In this context, Article 12 of the Universal Declaration of Human Rights states: ’’No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

    The right of self-defence is the right for persons to use reasonable force or defensive force, for the purpose of defending one’s own life or the lives of others, including, in certain circumstances, the use of deadly force.

    Take for instance, in August 2014, Ram Kumar Singh, a practising advocate since 1983, sent a notice to the Supreme Court as well as the Chief Justice of India, alleging that the Chief Judge of the Allahabad High Court was “pro-government” and “unfit to administer in his present capacity”.

    He also accused the Chief Justice of India of helping the Chief Judge and the Supreme Court, saying the apex body was “captured by corrupt gang of people”.

    The court said the allegations were “contemptuous, wild and reckless”. It  barred Singh from entering both the District Court and the Allahabad High Court (including Lucknow Bench) for six months.

    Following the order, advocate Singh, who was present in the court and had argued his case in person, was taken into judicial custody.

    Eventually, the court’s order read: “We are of the view that any lenient or sympathetic approach, if adopted by the court, would give a wrong message to all concerned and may cause serious damage to the authority of the court.

    “The allegations are apparently scandalous and lower down the authority of the court. We, therefore, hold the contemnor guilty of criminal contempt.”

    Holding the lawyer guilty of “maligning the reputation” and “lowering the authority of the court” through his comments, the Allahabad High Court sentenced him to four-month imprisonment and imposed a fine of Rs 1,500.

    On November 08, 2003, a combative criminal defence lawyer who represented some of the most notorious defendants in Northern California (USA) went to jail to serve a 20-day sentence for “extremely offensive” and “utterly unprofessional” conduct during a trial four years ago. She also was fined $4,300 for contempt.

    Maureen Kallins, 54, who began practising law in 1976, left a packed courtroom with her hands cuffed behind her back after a judge refused to modify her sentence for contempt of court.

    Kallins received five contempt sanctions from the judge during the 1999 trial, in which she represented an accused rapist who was subsequently convicted. Her appeals were recently exhausted.

    Kallins had been a well-known legal figure in Northern California, particularly for her aggressive style in the courtroom and her tendency to enrage judges and prosecutors.

    Appellate courts chastised her for “outrageous” conduct and for being so “out of control” in one trial that it became “the trial from hell.”

    The 2011 Presidential Election Petitions Tribunal led by Justice Kumai Bayang Akaahs (now JSC) on 5 October, 2011 summoned the National Publicity Secretary of the defunct Congress for Progressive Change (CPC), Mr. Rotimi Fasakin for allegedly calling the five justices of the tribunal “a cash and carry panel”.

    The said controversial press statement led to the tribunal summoning Nigerian Tribune’s Editor, Mr Edward Dickson and reporter, Christian Okeke, who were later discharged and acquitted after giving evidence that it was issued by Fasakin. In what could have served as a lesson for our politicians of today, the panel also allowed Fasakin to walk out of the court a free man.

    Ever since then, attacks on judges have not just increased, but added some new dimensions.

    A High Court in Ahoada East Local Government Area of Rivers State was bombed on January 6, 2015. Justice Charles Wali was to hear a suit instituted by the then Speaker of the state’s House of Assembly, Otelemaba Amachree, and others seeking an injunction to retrain a member, Evans Bipi, from parading himself as the Speaker of the Assembly, when the incident occurred.

    On 22 May, 2015, angry youths took to the streets in some part of Kano State, protesting what they call an abuse on the Prophet Muhammad by some members of Tijjaniya Movement during a lecture in Kano. The accused person and a female who organised the lecture were to be arraigned before the Kurna Sharia Court the same day it was set ablaze.

    A new dimension to delaying criminal cases was witnessed in Ekiti State prior to the swearing in of the state Governor, Ayo Fayose.

    Fayose was under trial for allegations of financial misappropriation during his first term as governor between 2003 and 2006 when he was removed from office through an impeachment.

    Prior to the swearing-in, a group, E-11, and others challenged Fayose’s eligibility to contest the election. In a determined bid to stop the case from being heard, judges, lawyers, court officials, and journalists were, on September 22nd and 25th, 2014, beaten or assaulted.  Judges’ suits and court records were also torn to shreds, while windows and furniture of the courts were smashed.

    Curiously, Ekiti State Chief Judge stepped out to administer oath of office and allegiance to Fayose shortly after the incident.

    A big lesson could have been served on politicians if the Chief Judge refused to administer the oaths to Fayose.

    A horrible precedent had been set. All the corrupt governors or ‘’very important persons’’ need to do is to cause the disruption of a criminal trial by sending thugs to beat up judges and force a shut-down of the “helpless” Judiciary.

    Also in Bayelsa State, gang of thugs repeated the Ekiti incident when, on March 30, 2015, they attacked a Federal High Court in Yenogoa in order to prevent the court, which was in session, from delivering a judgment on Senator Heineken Lokpobiri’s case against the governor’s preferred senatorial candidate, Foster Ogola, over the validity of the latter’s candidacy for Bayelsa West senatorial district.

    The fact remains that those who invaded the court acted criminally, but got away with it as well as with benefits, which makes the crime attractive to these personalities

    Coming back home, the Nigerian Bar Association (NBA) President, Austine Alegeh (SAN) during the special session of the Supreme Court to mark the commencement of the 2015-2016 legal year and the swearing-in of newly conferred Senior Advocates of Nigeria, accused some judges of rendering judgments for a fee.

    Alegeh said: “It is indeed very worrisome that certain judicial officers still engage in rendering judgments for a fee. Instances abound where judicial officers have resorted to turning the law on its head and making pronouncements which are at variance with the provisions of the law.

    “A few others have formed the bad habit of ignoring judicial precedents even when such authorities are brought to their attention by counsel’’

    Even in some developed countries, it would not have been out of place for a court of competent jurisdiction to summon the NBA president the following day to name those he found to have engaged in ‘’rendering judgments for a fee’’.

    The Publicity Secretary of the Peoples Democratic Party (PDP), Olisa Metuh, went on air on  October 19, 2015 to accuse the President of the Court of Appeal, Justice Zainab Bulkachuwa of undue interference in the activities of various election petition tribunals and other judicial cases and working to sway decisions in favour of the All Progressives Congress (APC).

    Again, Metuh did not cite one example of cases or judges affected,  except just to bring the judge or the judiciary into ridicule, hatred, scorn or contempt.

    In view of the harm being done to the Judiciary through these acts, judges can no longer afford to continue to look the other way; they must draw lines and go to equity by taking recourse to self-defence or self-help. But it is trite that he who must go to equity must go with clean hands. The Judiciary therefore, must first get rid of the ‘’few’’ indulging in denting the images of the Judiciary.

    Ahuraka is the Media Aide to the Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed.

     

     

     

  • ‘Courts, tribunals can exercise concurrent jurisdiction on qualification’

    ‘Courts, tribunals can exercise concurrent jurisdiction on qualification’

    A single decision of the Governorship Election Tribunal of Lagos State (here inafter referred to as the “trial tribunal”), in Petition No. Gov./EPT./L/15/2015, delivered on July1, 2015, gave birth to four extant appeals. This cross-appeal is one of them. It probes into the correctness of some portions of the decision; precisely the competence of Paragraphs 13(b) and 14 of the Petition as viable grounds to query the election.

    The facts of the petition, which transformed into the cross-appeal, are submissive to brevity and easy comprehension. The third Cross-Respondent, the Independent National Electoral Commission (INEC, for short), a body constitutionally assigned with the onerous task of conducting election in Nigeria, conducted election into the office of the Governor of Lagos State on April 11, 2015. In the said election, the fourth Cross-Respondent was the flag bearer of the Cross-Appellant, All Progressives Congress, (APC): a registered political party in Nigeria. The second Cross-Respondent, Peoples Democratic Party, (PDP), another registered political party in Nigeria, had the first Cross-Respondent as its standard bearer during the election. At the end of the election exercise, the third Cross-Respondent, INEC, via the fifth Cross-Respondent, declared and returned the fourth Cross-Respondent as the winner of the election. The first and second Cross-Respondents were displeased with the result of the election. Hence, on 30th April, 2015, they beseeched the trial tribunal, by dint of a petition, and solicited for the some reliefs. In expected reactions, the Cross-Appellant and the fourth Cross-Respondent and the third and fifth Cross-Respondents filed their respective replies which joined issues with the petition. At the closure of pleadings, the petition and replies, the Cross-Appellant brought an application, wherein it entreated the trial tribunal to strike out or dismiss the petition for lack of jurisdiction on the grounds that:

    1. The petition was incompetent having failed to state any grounds recognised by law for presenting the petition and which grounds ought to be struck out brevi manu;
    2. While grounds (a) and (b) contained in Paragraph 13 of the petition are completely unknown to the Electoral Act, ground (c) contained on page 14 of the petition is a pre-election matter in respect of which the Tribunal has no jurisdiction;
    3. The petitioners did not meet all the conditions precedent to present the petition.

    The first and second Cross-Respondents, stoutly, registered their opposition to the application. Prior to hearing of the petition, exactly on 26th June, 2015, owing to the incompatible stands of the counsel for the parties, the trial tribunal had ruled that all the notices of preliminary objections and motions “shall be heard and determined in the pre-hearing session”. Sequel to that, the trial tribunal consolidated the Cross-Appellant’s application with other preliminary objections and fused their hearing. In a considered ruling, delivered on 1st July, 2015, the trial tribunal struck out the petition. The first Cross-Respondent was aggrieved by the decision and appealed against it in Appeal No. CA/L/EP/Gov/744/2015. This cross-appeal is the Cross-Appellant’s expression of its dissatisfaction with some parts of the decision.

    In the Cross-Appellant’s brief of argument, it distilled two issues for determination to wit:

    1. Whether the Tribunal was right in its decision when, having held that Paragraph 14 of the petition is a challenge against the nomination of the 4th Cross-Respondent, still went ahead to hold that the said Paragraph 14 of the petition is valid ground for presenting a petition.
    2. Whether the Tribunal did not err in law when it held that Paragraph 13(b) of the petition, which complained of “Irregularities in respect of the use of the card reader during the election”, is a ground recognised under Section 138(1)(b) of the Electoral Act, 2010 (as amended).

    All the Cross-Respondents, who filed briefs of arguments, adopted the two issues formulated by the Cross-Appellant.

     

    Arguments on the issues

     

    Learned counsel for the Cross-Appellant submitted that Paragraph 14 of the petition raised issue of nomination which was a pre-election for which the High Court or Federal High Court, not the trial tribunal, had jurisdiction. He referred to Sections 177(C) and 182(1) of the Constitution, as amended. He added that Section 85(1) of the Electoral Act, 2010, as amended, could not add or subtract from the qualification on those provisions. He relied on INEC v. MUSA (2003) 3 NWLR (Pt. 806) 72; (2003) LPELR-1515(SC) for the submission. He noted that the Constitution allowed the National Assembly to legislate on election matters in its Section 184(a)-(c), not the issue of giving 21 days notice of convention to INEC. He stated that the only situation where valid nomination could become part of qualification was as contained in Section 187(1) of the Constitution. He posited that the word “shall” in Section 85(1) of the Electoral Act should be construed as “may” because it had no sanction. He relied on Ifezue v. Mbadugha (1984) NSCC, Vol. 15, 15; (1984) LPELR-1437(SC), Monye v. PTFTM (2002) 15 NWLR (Pt. 789) 209; Section 85(2) of the Electoral Act for the point. He explained that valid nomination would be pertinent in a lawful exclusion from an election. He cited Section 138(1) (d) of the Electoral Act for the view. He noted that invalid nomination qualified as pre-election matter. He cited Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; (2011) LPELR-950(SC) for the point. He explained that the purpose of Section 177 of the Constitution, as amended, was to avoid independent candidacy and not a basis for presenting petition. He criticised the decision in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC) and distinguished it from the case in hand. He maintained that a person who did not contest a primary election had no locus standi to challenge its outcome under Section 138(1) (a) of the Electoral Act 2010, as amended. He referred to Bewaji v. Obasanjo (2008) 9 NWLR (Pt. 1093) 540 on the relationship between reliefs and locus standi.

    For the first Cross-Respondent, learned counsel contended that for the fourth Cross-Respondent to be qualified, he must be properly nominated under Section 85(1) of the Electoral Act. He insisted that the trial tribunal rightly applied the ratio decidendi in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC). He reasoned that Paragraph 14 of the petition was a ground that could be addressed in the High Court and in a tribunal. He stated that a pre-election matter, like in the case in hand, could constitute a ground to challenge election. He postulated that a political party must comply with the provisions of Section 85(1) of the Electoral Act for its candidate to qualify as a candidate for an election. He explained that the Act was not in conflict with Sections 177 and 182 (1) of the Constitution, as amended.

    On behalf of the second Cross-Respondent, learned counsel aligned with the submission of the counsel for the first Cross-Respondent that the trial tribunal had jurisdiction in respect of Paragraph 14 of the petition.

    For the fourth respondent, learned counsel submitted that Section 85 of the Act could not be regarded as qualification issue as it related to nomination. She added that Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC) and Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89-90; (2012) LPELR-7827(SC) (CONSOLIDATED) were not applicable to the case. She reproduced Sections 177 and 182(1) of the Constitution, as amended, and persisted that they had covered the field on the requirement for eligibility as a gubernatorial candidate. She noted that sponsorship was not the case of the first and second Cross-Respondents in the trial tribunal and a Court should not make a case for a party. She adopted the submission of the Cross-Appellant who had the locus standi to question his nomination obtained in a primary election.

     

    Resolution of the issues

     

    The Court in determining issue 1 of the appeal considered the provision of Section 138(1) of the Electoral Act. The Court noted that the provision, which has fallen for interpretation in an avalanche of cases, donates to a party a right to challenge an election on any of the listed grounds, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; (2013) LPELR-19762(SC). The Court noted that the kernel of the Cross-Appellant’s grievance is that the averment in Paragraph 14 of the Petition amounted to a pre-election matter for which the trial tribunal was stripped of the necessary jurisdiction to entertain it. The Court stated that jurisdiction is the authority a Court or tribunal has to adjudicate over a matter submitted to it. Where a Court is drained of the requisite jurisdiction, its proceedings on a matter, no matter the quantum of diligence, brilliance, sophistry and transparency invested in it, will be trapped in the intractable vortex of a nullity, see Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50; (2012) LPELR-7827(SC) (CONSOLIDATED), Yar’adua v. Yandoma (2015) 4 NWLR (Pt. 1448) 123; (2014) LPELR-24217(SC. Thus, no Court would cherish indulging in a juridical exercise whose destiny is a nullity and, de jure, a wasted venture. The Court further stated that the provisions of Section 177 and 182 of the Constitution, as amended, explicitly, enumerate the conditions a person must meet in order to be qualified to contest election for the office of a governor of a state, see PDP v. INEC (2014) 17 NWLR (Pt. 1347) 525. The Court held that nomination connotes “appointment, a resolution submitted to the electors that the party named is a candidate for their suffrage for an office named”, see Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347; (2011) LPELR-950(SC). The Court further held that the law has classified nomination and sponsorship as pre-election matters. The Court held further that in the eyes of the law, qualification/disqualification of a candidate for an election is an amphibious incident in that it appertains to pre-election and post-election matters. Put simply, a challenge to qualification/disqualification of a candidate enjoys the status of pre-election and postelection matters, see Gwede v. INEC (supra); Akpamgbo- Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124. Thus, the law has endorsed the hybrid status of qualification/disqualification of a candidate in an election. The Court then asked which Court has the jurisdiction to entertain a challenge to qualification? The answer the Court held is discernible from Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89-90; (2012) LPELR-7827(SC) (CONSOLIDATED).

    The Court held that it flows that the law allots/allocates concurrent jurisdiction to the regular Courts, Federal High Court or High Court, on the one hand, and election tribunal, on the other hand, to adjudicate over qualification/disqualification of a candidate to contest an election. If a party decides to visit the regular Courts for redress, then the law preserves his right to pursue his right beyond the holding of an election, see Ikechukwu v. Nwoye  (2015) 3 NWLR (Pt. 1446) 367. On the authority of Gwede v. INEC (2015) 242 LRCN 138, a party can approach the regular Courts on a pre-election matter even after election provided he acts timeously. The Court noted that the philosophical basis for this hallowed principle of law is to repel any injustice that may be inflicted on parties in electoral process. In sum, the Court held that the first and second Cross-Respondents did not insult the law by incorporating Paragraph 14, which questions the qualification of the fourth Cross-Respondent, in their petition.  The Court dishonoured the inciting and enticing invitation of the Cross-Appellant to ignore the decision in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; (2011) LPELR-23303(SC) on account of per incuriam. The Court noted only the Supreme Court that is imbued with the jurisdiction to do so.  In the end, the Court resolved issue one against the Cross-Appellant and in favour of the first and second Cross-Respondents.

    The Court noted that the heart of issue 2 is that Paragraph 13(b) of the petition does not qualify as a ground to challenge the election of 11th April, 2015. In considering this issue, the Court situated the Paragraph with the prescription of Section 138(1) of the Electoral with a view to discovering its validity. The Court noted that indisputably, the law mandates parties to election petitions to adhere strictly to statutory forms in drafting their grounds of petitions. The Court noted that the case of Ojukwu v. Yar ‘adua (2009) 12 NWLR (Pt. 1154) 50; (2009) LPELR-2403(SC) lavishly and freely cited by the feuding parties to fetch the favour of the Court, allows a petitioner to “use his own language to convey the exact meaning and purport of the subsection”, at 121, per Tobi, JSC. The Court further noted the authority, also, gives a petitioner the licence to paraphrase the grounds upon which an election can be challenged. The Court held that the content of Paragraph 13(b) does not, in the least, fit into any of the grounds catalogued in the inviolate provision of Section 138(1) of the Electoral Act. Issue 2 was resolved in favour of the Cross-Appellant and against the first and second Cross-Respondents.

    On the whole, having resolved the two issues for and against the Cross-Appellant, the Court held that the appeal was partially-meritorious and succeeds in part. Consequently, the Court allowed the cross-appeal in part. Accordingly, the Court affirmed the portion of the trial tribunal’s decision declaring Paragraph 14 of the petition as competent and triable by it. The Court aside its part of the decision which approved Paragraph 13(b) as a competent ground for presenting the petition. In lieu of it, it struck out the Paragraph 13(b) of the petition on account of incompetence.

     

    • Edited by LawPavilion, LawPavilion Citation: (2015) LPELR-25668(CA)