Obono-Obla is a Barrister, Solicitor & Civil Society Activist. He lives in and practices Law in Abuja, Nigeria.
The Judiciary is construed as the hallmark and pantheon of constitutional democracy and the bulwark of the people against repressive governments and infractions or deprivations of their rights and privileges. It is clear that when matters become knotty and inexplicable in society, it is the judiciary that is resorted to for the interpretation of laws and for resolution of conflicts. It is follows that to be able to interpret the law and resolve conflicts, the Courts must be very clear, consistent and certain in its judgments or decisions. The Court must refrain from giving conflicting decisions or rulings on cases brought before it by parties which make interpretation of the law a nightmare or bring about confusion in the state of the law at any given time.
In recent times consistency and certainty which are the cornerstones of the Legal System hinged on judicial precedent appears to have been fast eroded especially in election litigations in the country, so much so that it appears that the judiciary rather than playing its time long traditional constitutional role of being an interpreter of the law and an instrument of conflict resolution is rather seen as the harbinger of anarchy and confusion. Put another way, the Courts rather than providing solutions to conflicts are now embroiled and enmeshed in confusion and conflict emanating from contradictory and conflicting decisions of the appellate Court especially in the Court of Appeal where it is now a notorious fact that there has been an avalanche of conflicting judgments by the different Divisions or Panels on election matters.
It is settled that appellate Courts in Nigeria in election litigations are: the Supreme Court of Nigeria; and the Court of Appeal. The jurisdiction of the Supreme Court of Nigeria concerning election cases are restricted to appeals from the Presidential Election Tribunal (which in real fact is the Court of Appeal sitting as the Presidential Election Petition Tribunal). The Jurisdiction of the Supreme Court of Nigeria in this regard is conferred by Section 233 (2) (e) (i) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered and amended). The Supreme Court of Nigeria is also vested with jurisdiction on appeals from Governorship Petitions from the Court of Appeal. An appellate Court is a Court having the power or jurisdiction to review the decisions at trial level or lower Court in the judicial hierarchy.
On the other hand the Court of Appeal is the last or final Court to hear appeals from the National/State Assemblies Election Petition Tribunals. This jurisdiction is conferred by Section 246 (1) (b) of the Constitution of the Federal Republic of Nigeria (supra).
The Court of Appeal, which has several Divisions, has handed down conflicting judgments and decisions in its interpretation of the Electoral Act and other enactments on election litigations. A glaring example is the conflicting interpretation of Paragraph 18 (1) of the First Schedule to the Electoral Act in respect of the procedure for initiating Pre-hearing Session. Panels or Divisions of the Court of Appeal in Port Harcourt, Calabar, Kaduna, Makurdi and Ibadan have all given contradictory and conflicting judgments/decisions which has occasioned so much uncertainty and confusion until the Supreme Court clarified the position in the cases of the Governorships Petitions in Akwa Ibom and Benue States.
We have seen conflicting decisions of same Judges of the Court of Appeal in Lagos, Osun, Ogun and Ekiti States in election litigations on matters that the facts and circumstances are similar arriving at different decisions to the embarrassment of the Bench and Bar. There are numerous conflicting decisions on election matters of the Court of Appeal however we shall use three or four cases as illustrations to drive home the point:
1. In AGBAJE VS. FASHOLA the Appellant was nominated as the Governorship Candidate under the
platform of Democratic People Alliance (DPA) while the 1st Respondent ran election under the platform of Action Congress (AC). There were also about 20 other Candidates for the same office who were sponsored or nominated by various other political parties and who contested in the said election. Upon the declaration of the 1st Respondent as the winner of the election, the Appellant as one of the candidates who lost, was aggrieved by the result and filed his Petition complaining that the said election held in Lagos State on 14/4/07 was invalid by reason of non-compliance with the provision of the Electoral Act 2006, the Constitution of the Federal Republic of Nigeria and the Common Law on election. The main ground of his complaint in the Petition was that after he had submitted 4 (four) copies of his photographs to be embossed in the ballot paper as prescribed by the 4th Respondent, they were not so embossed by the 4th Respondent. Rather, the 4th Respondent printed only the photographs of the 1st Respondent and other candidates on the said ballot papers, and thereby discriminated against the Appellant who was then denied a fair/level playing ground and the opportunity afforded to the 1st Respondent and other candidates whose photographs were printed on the ballot papers at or during the election. The Appellant also complained against the inflation or deflation of votes or figures by the 4th Respondent rendering the said election badly conducted or not in accordance with the dictates of the Law or principles of the Electoral Act (supra). Consequently, the Appellant urged the Tribunal to declare the Governorship Election of 14/4/07 held in Lagos State as invalid and void, to set it aside or nullify it and order a new Governorships election to be conducted in the State in accordance with the Law and principle of the Electoral Act 2006.
The Court of Appeal held thus: “its my humble view that this interpretation which is exactly the same as the one given by the Tribunal is the correct interpretation based on the express, clear and unambiguous wordings of the section under review and also acceptable to common sense. It will also not lead to any absurdity or mischief. It is trite that the words ‘shall or may’ when used in a statutory provision are capable of bearing many or different meanings depending on the intention of the legislators and the context in which they are used or employed in the particular provision. Thus, even though "shall" is used, it may be interpreted as either in a mandatory sense or merely directory in a permissive sense. Where it is so used in a directory sense, the action(s) to be taken is or is expected to be carried out substantially. Once the action(s) prescribed is or are substantially carried out as in the present case, the mandate has been complied with or achieved. See IFEZUE Vs. MBADUGHA (supra); AMOKEODO Vs. IGP (1999) 6 NWLR (pt. 607) 467. AMADI Vs.NNPC (2000) 10 NWLR (pt.674) 76; OJU L.G. Vs. INEC (2007)
14 NWLR (pt. 1054) 242 AT 270 -271; and RIMI Vs. INEC (2005)
6 NWLR (pt. 920) 56 at 80 -81 and UGWU Vs. ARARUME (supra). In view of my above consideration, the 1st question posed above should be answered appropriately so that even though the 4th Respondent had prescribed the embossment of passport photograph on the ballot papers in addition to 3 other requirements, the absence of the said passport photograph in the ballot paper will not be fatal to the election once it is shown or accepted that the other 3 (three) requirements of the provision of section 45 (1) have been fulfilled by
the said 4th Respondent. Thus it tallies with the common sense that the fulfilment of three out of the 4 requirements and a fortiori the non fulfilment of only one out of the 4 requirements amounts to a substantial compliance with the provision of the section or that the non-compliance was not substantial enough to warrant the voiding of the election. It is trite that the non-observance or non-compliance of the electoral rules in order to render the election invalid or contrary tothe principle of the Electoral Act must be so great and substantial and must satisfy the Court or Tribunal that it affected or might have affected the majority of the voters or the result of the election - See SORUNKE Vs. ODEBUNMI (1960) SCNLR 414.
The Court of Appeal in AGBAJE VS. FASHOLA dismissed the use of biro or accreditation of voters other than the one described in the Manual for conduct of election as inconsequential. But in FAYEMI VS. ONI, the Court of Appeal in its Judgment of February 18th, 2010, nullified the Ekiti State Governorship elections in 63 out of the 177 Wards in Ekiti State just because accreditation was done with a RED BIRO stipulated by the Manual for the conduct of election. The Court of Appeal in its Judgment shifted the burden of proof from the Petitioner to the Respondent.
However, in AMOSUN VS. DANIEL, the Court of Appeal presided over by Honourable Justice Mohammed Lawal Garba held that one Tunde Yadeke was not an expert in the examination and analysis of electoral materials. However, in the AREGBESOLA VS. OYINLOLA ruled that Tunde Yadeke was an expert. These are two cases with similar facts but on which different judgments were delivered within a period of no less than two months.
2. We shall further illustrate on judgments of the Court of Appeal, which conflicts one with the other. One of the conflicts is on whether or not a Statement on Oath must conclude with the exact words used in the First Schedule of the Oaths Act. In Obumneke v. Sylvester (2010) ALL FWLR (PT. 506) 1945 @ 1961, the issue for determination was whether the Petition was incompetent in view of the fact that the Petitioner failed to use the exact words used by the legislature of the First Schedule to the Oaths Act, 2004, in concluding his Statement on Oath. The Court of Appeal held that failure to use the exact words or format prescribed by the legislature of the 1st Schedule to the Oath Act in concluding the Statements on Oath is fatal and rendered the Statements inadmissible.
However, the Court of Appeal on the same issue in IBRAHIM V. INEC (2007)3 ELECION PETITIONS REPORTS 50 @ 66 held that Section 13 of the Oaths Act, 2004, provides for four various Oaths or Declarations that may be subscribed by various persons depending on the nature of their duty. The provision must be contained in an affidavit. It provides for classes of oath that may be lawfully administered by any Commissioner of Oaths, Notary Public or any other person authorized by the Oaths Act to administer Oaths, for example, the oath to be subscribed to by a deponent to an affidavit as in the instant case is titled Oath for Affidavits at page 12250 of the Oaths Act Cap 333. The Court of Appeal further held that the clear intention of the legislature under the Oath titled ‘Statutory Declaration’ is to afford persons who intend to make declarations such as marriage, age or assets to subscribe to that declaration. It is not the intention of the legislature that the wording of the declaration be incorporated in an affidavit to render it valid.
NKEIRUKA V JOSEPH V. DIMOBI JOSEPH  5 NWLR (PT. 1135) 505 is another judgment of the Court of Appeal that conflicts with IBRAHIM VS. INEC (supra) concerning the application of the Oaths Act to a Statement on Oath. The Court of Appeal, Enugu Division held thus:
“Section 13 of the Oaths Act provides as follows: -
‘It shall be lawful for any commissioner for Oaths, notary public or any other person authorized by the Act to administer an oath, to take and receive the declaration of any person voluntarily making the same before him in the form set out in the First Schedule to this Act’ "
While the form of Oath for affidavits in the First Schedule to the Oaths Act reads as follows: -
"I ... Do solemnly and sincerely declare that (set out in numbered paragraphs if more than one matter) and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Oaths Act "
The words of the Oaths Act as to the form are to be found in the 1st Schedule, "I ..... do solemnly and sincerely declare that I make the solemn declaration conscientiously believing same to be true and by virtue of the provisions of the Oaths Act" No Oath can therefore have a different form. Where the words of an enactment are clear, construing a statute, the court should give them their literal or ordinary meanings not in respect of our view of what the law ought or should be. In Goodrich v. Paisner (1957) AC 65 per Lord Reid that, "No court is entitled to substitute its words for the words of the Act." See also Mobil Oil Nigeria Ltd. v. Federal Board of Inland Revenue (1977) 1 All NLR 47. The provision of paragraph 1(1) (b) of the Practice Directions 2007 provides for written statements on oath of witnesses. The word oath (italics mine) is what gives the written statements their validity. Any written statements without Oath will not satisfy the mandatory requirement of the Practice Directions. A valid oath must be in the form of the Oaths Act. The form, Section 13 of the Oaths Act must take is to be found in the 1st Schedule "I do solemnly and sincerely declare..." Any written statement which does not bear the First Schedule to section 13 of the oath Act, cannot be said to be a written statement on oath. It is only when the declaration of the oath is made that the identity of the maker of the statement can be ascertained. It also serves as to the verification as truth of the statement made therein. It is this vital aspect of the oath that is missing in all the written statements of the witnesses to the appellant in the present appeal. All written statements without oath cannot be effective in the Practice Directions. The provisions of the Practice Directions are as valid and effective as the express provisions of the Electoral Act, 2006, and they also form the rule of procedure as they are made by the President of the Court of Appeal under Section 289 of the Constitution of the Federal Republic of Nigeria, 1999. Non-compliance with this mandatory provision is a valid ground to nullify the election petition. The entire petition is left bare without any proof of the grounds of the petition. The rules of court are not made for fun, they are made to be obeyed See: - Ezekiel-Hart v. Ezekiel-Hart (1990) 1 NWLR (Pt. 126) 276, Tom Ikimi v. Godwin Omamuli (1995) 3 NWLR (Pt. 383) 355, Ibrahim v Col. Cletus Emein & Ors. (1996) 2 NWLR (Pt. 430) 322, Tehat A.O. Sule v. Nigerian Cotton Bond (1985) All NLR 257; (1985) 3 NWLR (Pt. 5) 17; Oda v. Jolaoso (2002) 37 WRN 115, (2003) 8 NWLR (Pt. 823) 547.
On the whole, therefore, those written statements of witnesses of the appellant having not complied with the provision of Section 13 of the Oaths Act are not written statements on oath as envisaged by paragraph 1(1) (b) of the Practice Directions, 2007. Issue No. 1 is therefore resolved against the appellant”.
The spate of conflicting judgments which we seen in election litigations in the Court of Appeal is quite worrisome and a sore point in the administration of justice in the country and this has invariably made a drastic and comprehensive reform of the justice sector imperative. The reform is particularly needed in the mode of appointment of Judges to the appellate Courts in the Country which presently leaves a lot of room for appointments based on patronage and other inferior methods.
There is no doubt that the conduct of the April 2007, general election was a complete and unmitigated disaster. The elections were marred by substantial irregularities of unimaginable proportion never seen or experienced in the chequered history of the conduct of elections in the country. This led to the nullification of Governorship elections in Cross River, Kogi, Edo, Ondo, Adamawa, Enugu, and Bayelsa State, to mention but a few. In the case of Cross River, Sokoto, Kogi and Adamawa States, the Governors were booted out of office after the Courts declared that the elections that brought them into office were not properly conducted. Some of these Governors had stayed in office more than one year before the nullification of their election. For instance Liyel Imoke of Cross River State had stayed in office more than one Year (state specific period) before the Court of Appeal annulled his election on the 14th July, 2008.
The hiatus in the Electoral Act had given the opportunity to those whose elections were nullified on ground of substantial non-compliance to re-contest the fresh elections ordered by the Court. In all cases, all the Governors whose elections were voided have managed to win these fresh elections and have assumed office once again. Some people have cynically and sarcastically put it that all the Governors are clamouring for nullification of their election because they think the period which they were in office before the nullification will not be counted for the purpose of determination/ computation of when the time will began to run from when they assumed or came into office.
In one State where the election of the Governor was annulled by the Court, a Senator (who incidentally is a Senior Advocate of Nigeria) in a rather cavalier manner was reported to have ridiculed the opposition for being instrumental to his Party Candidate's tenure elongation. There can be no doubt that this Senator and all those who subscribe to the view that Governors whose elections were nullified will invariably benefit from tenure elongation because the period they were in office before nullification will not be counted, probably draw their inspiration from the case of Peter Obi V. Independent National Electoral Commission (2007) 11 Nigerian Weekly Law Report (Part 1046) 565.
The facts of Peter Obi's case are as Follows: Peter Obi was sworn into office on 17th March 2006 after he successfully established that he should have been returned as Governor having scored the majority of lawful votes cast in the election for governorship of Anambra State in the April 2003 general election. By virtue of Section 180 (2) of the Constitution of the Federal Republic of Nigeria, 1999 which provides that ----. Mr. Obi had only served for nearly one year of the four years tenure before the Electoral Commission ordered a general election, thereby bringing his tenure to a premature end.
Consequently he filed an action in the Federal High Court challenging the decision of the Independent National Electoral Commission to hold gubernatorial election in Anambra State on the ground that his tenure of office will expire in March 2010 rather than 2007, having taken Oath of Office on the 17th March 2006. He lost the case in both the Federal High Court and the Court of Appeal. However on further appeal to the Supreme Court, the Court held that the period of computation of the tenure of office of Governor for the purpose of ascertaining when his tenure will expire starts from the day when he took the Oath of Office not from the day when the person who was wrongly returned by the Electoral Commission was sworn into office.
Relying on the above judgment, there have been several insinuations that the term of office of the Governors whose elections were nullified will be automatically elongated as the calculation of time, for the purpose of general election, will commence not from the time they were sworn into office before their election was annulled, but from the time they were sworn in after the nullification of their election. That should not be the case as it is crystal clear that the case of Peter Obi v. INEC is different from the scenario that took place in States where elections of seating Governors were voided. In these States, the Governors took oath of office and effectively and effectually assumed the office. The basic principle of law which is strongly rooted in our jurisprudence is that no one will be allowed to benefit from his own wrong doing. This is what it will amount to if those whose elections were nullified on grounds substantial non-compliance (such as hoarding or withholding of results sheets to polling stations as in the Cross River case) are nullified by the Tribunal and fresh election conducted emerges winner.
Why would the years these Governors had spend in office not taken be into account in the computation of time for the purpose of determining when their tenure will expire? If this is the position what becomes of the all official acts or conducts taken by the Governor whose election is nullified? What becomes of the salary paid to the Governor during the period he was in office before his election was nullified? What becomes of the appointment made by the Governor such as Special Assistants, Commissioners etc before his election was nullified? Are these appointments illegal or a nullity? What of the promulgamation of the House of Assembly which the Governor is constitutionally empowered to make? Is the promulgamation of the House of Assembly by a Governor which election was nullified a nullity?
If these acts of the Governor and appointments made by him are not invalidate it therefore means that the acts of the Governor during the period before the nullification of his election, is not a nullity even though his election was nullity. If the acts of the Governor are regarded as valid, it therefore means the tenure of such a Governor is not completely void. The Governor cannot collect salary from the public patrimony and turn round to contend that his previous period he spent in office should not be counted with the period he will stay in office after the fresh election? It is our view that such a narrow construction or interpretation will lead to absurdity, confusion and a constitutional crisis of unimaginable proportion to hold the view that the acts or conducts or appointment made by a Governor whose election was voided by the Court amounts to a nullity. The correct approach or perspective is that the period the Governor was in office before the nullification of his election should be taken into account in the computation of time for the purpose of calculating when his tenure of office will start and terminate.
Another case decided by the Supreme Court which has to do with the tenure of a Governor who was impeached from office but which impeachment was declared wrongful and unconstitutional by the Court was the case of Rashid Ladoja v. Independent National Electoral Commission (2007) 12 Nigerian Weekly Law Report (Part 1047) 119.
The Appellant in that case had challenged the decision of the Independent National Electoral Commission to order the conduct of election in Oyo State on the ground the period which he was out of office on account of his impeachment that was declared null and void by the Supreme Court should not be computed in the period he is constitutionally required to stay in office. At the hearing the Appellant's Counsel argued eloquently and persuasively that once the event which interrupted the tenure of the Appellant was pronounced illegal, the Court ought to compensate him by granting him an extension of tenure for the period of 11 months which the improper impeachment denied him. The Supreme Court held that the period Mr. Ladoja was out of office must be added to the time for the computation of the time when his tenure will expire. The Supreme Court stated the position of the Law thus:
'Neither the Supreme Court nor any other Court has power to extend the period of four years prescribed for a Governor of a State beyond the terminal date calculated from the date he took office...much as one may be in sympathy with the Plaintiff /Appellant's cause, it seems to me that to accede to his request will occasion much violence to the Constitution. This court can interpret the Constitution but it cannot rewrite it. In awareness of the possibility that an occurrence may prevent a Governor from being sworn in the same date as his counterparts in the country, section 180 (2) states that tenure be computed from the date the oath of allegiance and oath of office is taken. There is no similar provision to protect a Governor improperly impeached. I am therefore, unable to perform a duty which the Constitution has not vested in the Court'.
This is the most realistic and progressive position, which the Supreme Court should affirm in the event that there is a legal challenge in respect of the legality of the tenure of Governors who had served some period in office before their election was nullified fails to leave office on the four anniversary of their subscription to the Oath of Allegiance and Oath of Office. I think those who have been wallowing in the belief that Governors whose elections were annulled but won in the fresh election should be deducted the period they had served previously out of the period from their fresh mandate are living in a fool paradise. The truth of the matter is that I foresee a spate of litigation awaits these classes of Governors if the Independent National Electoral Commission fails to call election when their tenures expires on the fourth anniversary from when they first took the oath of office on their return over election that were nullified.
• Obono-Obla is a Barrister, Solicitor & Civil Society Activist. He lives in and practices Law in Abuja, Nigeria.
Note: This Essay was first published in 2008 in the Nigeria Village Square. There is current a legal tussle raging in the Supreme Court of Nigeria over the issues discussed in this essay concerning the tenure of Five State Governors.