Wednesday, 07 March 2012 14:19

Conflicting Judgments Of Appellate Courts In Election Litigations In Nigeria

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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 [2009] 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.

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Okoi Ofem Obono-Obla

Obono-Obla is a Barrister, Solicitor & Civil Society Activist. He lives in and practices Law in Abuja, Nigeria.