The issue of whether state governorship election petition tribunals can sit in Abuja may threaten the 180-day time-line for determination of cases, writes ERIC IKHILAE.
The President of the Court of Appeal (PCA), Justice Zainab Bulkachuwa thought she had safely addressed the fear of insecurity, raised by some states’ election tribunals, when she directed their relocation to Abuja.
As at last count, about six states’ election tribunals now sit in Abuja, on account of security threat. They include Adamawa, Akwa-Ibom, Borno, Rivers and Yobe states.
Rather than provide a safe and conducive environment for the discharge of their duties, the choice of Abuja as their sitting venue now constitutes a major problem that not only query the PCA’s intention, but threatens the operations of the tribunals.
Those, who felt uncomfortable with these tribunals’ sitting outside the states where the elections took place in April 11 this year, have challenged the PCA’s decision to allow such tribunals to sit in Abuja. They include Governors Emmanuel Udom and Nyesom Wike of Akwa-Ibom and Rivers states, former Akwa-Ibom State governor and now a Senator, Godswill Akpabio, among others
While some have gone before the Federal High Court on the issue, others have resolved to challenge the jurisdiction of the tribunals to sit in Abuja by filing applications to that effect.
Those pushing for the reversal of the PCA’s relocation have insisted that the issue borders on the jurisdiction, which must first be resolved before the affected tribunals could conduct any business in relation to pending petitions.
While no major steps have been taken in the cases before the Federal High Court, except in the one filed by Kemka Stanley Elenwo in Abuja, most of the tribunals have taken arguments on the applications, challenging their relocation, but are yet to deliver ruling.
The tribunals have, curiously, proceeded with their preliminary proceedings, while keeping silent on the challenge to their jurisdiction, believing that the challenge is against mainly their territorial jurisdiction as against subject matter jurisdiction. It is the contention of those, seeking the reversal of the PCA’s relocation directive, that a governorship/legislative election tribunal cannot validly sit and conduct businesses outside the state where the election took place in view of the provision of Section 285(2) 0f the Constitution.
Section 285(2) states that: “There shall be established in each State of the Federation one or more election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.”
They are relying heavily on the only available Court of Appeal’s decision given about 10 years ago in the case of Ibori vs. Ogboru (2005) 6 NWLR (part 920 C. A. 102, where a full panel of the appellate court held that an election tribunal must sit in the state where the election took place.
In the case by Elenwo, marked: FHC/ABJ/Cs/372/2015, filed in relation to the Rivers State tribunals, the plaintiff went further to query the powers of the PCA to constitute an election tribunals without consulting either the Chief Judge of the state, the Grand Kadi of the Sharia Court of Appeal of the state or the President of the Customary Court of Appeal of the state, as required under the provision of Paragraph 2(3) of the Sixth Schedule of the Constitution.
Elenwo and others, who are opposed to the sitting of the relocated tribunals in Abuja, want the relocation voided and the tribunals be returned to their states.
Conversely however, those in favour of the relocation argued that the Court of Appeal’s decision in the case of Ibori vs. Ogboru (2005) did not adequately interpret the provision of Section 285(2) of the Constitution.
To them, things are different now because, security and related matters, which informed the PCA’s decision to direct the relocation of some tribunals to Abuja, were not considered in the Ibori vs Ogboru case.
Wole Olanipekun (SAN), lawyer to the All Progressives Congress (APC) governorship candidate in Akwa-ibom State, Umana Umana, stressed this point in his counter argument in the application filed by Udom before the state’s governorship tribunal on June 22 this year.
“Ibori vs Ogboru is not an iron cast decision to the effect that a governorship tribunal must sit in the state where the election was held. The Ibori vs Ogboru case was decided in 2005 under the unamended Constitution and the Electoral Act (EA),” he said.
Olanipekun argue that not only were facts different, circumstances have also been altered in that, under the new EA, election tribunal is now regarded as a national institution and now captured under the Sixth Schedule of the Constitution.
“When the Ibori case was decided, there was no Section 285(6) and (7). The Constitution now says 180 days. The Ibori case was decided almost three years after the election. 52 days are already gone. Under the previous provision, the tribunal could afford to waste time. Now, the PCA appoints the tribunal judges and make practice direction,” he said.
Defendants’ lawyer in the Elenwo case, Professor Yemi Akinseye-George (SAN) , while arguing in similar vein, insisted that time and circumstances of these cases (Ibori and the current cases) are not the same. He noted that the issue of security was not canvassed in the Ibori case. He added that had the tribunal, in the case of Ibori given any reason for relocating its sitting out of Delta State, the decision would have been different.
Ruling on June 24 this year, in the case by Elenwo, Justice Gabriel Kolawole of the Federal High Court, Abuja upheld an application for referral filed on behalf of the PCA and three others and referred the issue to the Court of Appeal for determination.
He said the decision of the appellate court on the issue will guide the lower court faced with similar question as to whether or not the Court of Appeal has already interpreted the provision of Section 285(2) of the Constitution to address the issues which informed the relocation of the tribunals to Abuja.
“To the extent that the issue affects a number of states of the federation, it is to that extent that I believe that the opinion on the question stated will assist courts of first instance to deal expeditiously with cases in which the constitutionality of the 1st defendant’s (PCA’s) decision to direct the governorship election tribunals in the affected states to be relocated to Abuja to be timeously resolved.
“It is a substantial question of interpretation of the provision whether Section 285(2) of the Constitution can be read and interpreted to address the issue of venue for sitting of the governorship election tribunals outside the states for which they were constituted by the 1st defendant,” Justice Kolawole held.
Citing the development in the Elenwo case before Justice Kolawole, the Chairman of the Akwa-Ibom legislative election tribunal, Justice Goddy Anunihu told parties on July 2 this year that his tribunal will await the Court of Appeal’s decision on the issue of whether or not the tribunal could validly sit in Abuja.
The tribunal had scheduled ruling on the issue for July 2, but at the commencement of proceedings, Justice Anunihu, as is the case with other tribunals, said his tribunal will await the Court of Appeal, but will proceed with the pre-trial proceedings.
Although lawyers to Akpabio (on whose application the tribunal was to rule), his party, the Peopels Democratic Party (PDP) and Independent National Electoral Commission (INEC) urged the court to halt all businesses until the issue of jurisdiction was resolved, the tribunal held otherwise, insisting that the challenge was against its territorial jurisdiction and not subject matter jurisdiction. He adjourned to July 14.
While it is now clear that the relocated tribunals have chosen to await the appellate court’s direction on whether they could validly conduct their businesses in Abuja observers are concerned about the implication of such “transfer of responsibility” on the fate of the various petitions.
The questions being asked include whether the authorities of the Court of Appeal are aware of the need for timeous determination of this issue in view of the time limit accorded the tribunals by the Constitution?
They also wondered whether the issue will not eventually end at the Supreme Court in view of the fact that the PCA, whose court the decision on the issue has been referred, is a party in the case referred by Justice Kolawole and the other cases before the Federal high Court.
Can the Court of Appeal satisfactorily decide the issue when the PCA and some Justices of the court are parties in the suit? Will any of the party not argue that the affected Justices of the Court of Appeal, including the PCA cannot act as judges in their own case?
How fast can the Supreme Court move when this issue eventually gets to it for determination? Will the tribunals still meet the 180-day deadline? Time will tell.
