By Patrick O. Omodia

BACKGROUND

The Bayelsa State Governorship Election Tribunal holden at Abuja in PETITION NO: EPT/BY/GOV/03/2020 delivered its judgment nullifying the Governorship election for non-compliance with the provisions of Section 138 (1) d of the Electoral Act 2010 (as amended) on the 17th day of August, 2017. Neither the ratio decidendi nor the entire majority judgment is the concern of this paper. This write-up is concerned with an excerpt from the dissenting judgment of Hon. Justice Muhammad I. Sirajo at Page 24, thereof. In fact, the excerpt is not a material part of the dissenting judgment but it however caught the fancy of this writer. The excerpt reads thus;

“I find that there is clearly a conflict between section 138 (1) (d) of the Electoral Act which makes unlawful exclusion of candidate a post-election matter and the provisions of section 285 (14) of the Constitution which makes it a pre-election matter. Being a pre-election matter, contesting the election of the 1st

Respondent in excluding a candidate at an Election Petition Tribunal as a post-election matter ran contrary to the provisions of section 285 (9) & (14) of the Constitution. I would have struck down the provision of section 138 (1) (d)) of the Electoral Act for its inconsistency with the provisions of section 285 (9) & (14) of the Constitution but for want of jurisdiction to do so, as such powers resides only in the regular Courts, this being a special Tribunal with special and specific jurisdiction[1].” (emphasis supplied)

THE POSER

Flowing from the above, it is pertinent to inquire as to whether the Tribunal was in error. In other words, does the power to declare offending provisions of a law (Act of the National Assembly or Law of a State) void for its inconsistency with the provisions of the Constitution vest only in the “regular courts”?

It is the opinion of this writer that the said power is not the exclusive preserve of the “regular courts”. The Tribunal is right only to the extent that Election Tribunals are not among the regular courts in Nigeria. The “regular courts” under the Constitution are as listed in section 6 (5) (a)(k) of the Constitution as follows:

(5) This section relates to:-  

  • The Supreme Court of Nigeria;
  • The Court of Appeal;
  • The Federal High Court;

(cc) The National Industrial Court 

  • The High Court of the Federal Capital Territory, Abuja;
  • a High Court of a State
  • the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
  • a Sharia Court of Appeal of a State;
  • the Customary Court of Appeal of the Federal Capital

Territory, Abuja;  

  • A Customary Court of Appeal of a State;
  • such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and
  • such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.

Although an Election Tribunal is not a Court, it still has jurisdiction to make a declaration to the effect that an unconstitutional provision of any statute is void, for reasons which are stated below.

UNCONSTITUTIONAL PROVISIONS OF LAWS ARE AUTOMATICALLY VOID

Section 1 (3) of the Constitution states thus;

If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.

The implication of the above provision is that the Constitution is the supreme law of the land and the highest legal authority. Therefore, no law can validly run inconsistent with the provisions of the Constitution. The ability to determine whether a law is inconsistent with the provisions of the constitution is not and cannot be the preserve of the courts to the exclusion of other tribunals established by law to determine disputes. Once a tribunal has jurisdiction to entertain a dispute (in the case of an Election Tribunal, it has exclusive jurisdiction to determine whether a person was validly elected to the office of a Governor, member of the National Assembly or a House of Assembly[2]), it is entitled to interpret the laws it adjudicates on and therefore make a finding as to whether the said laws are consistent with the provisions of the Constitution, findings which are binding and subject only to an appeal to an appellate Court. This must be differentiated from decisions of administrative bodies which are administrative or executive in nature and are not interpretative in nature but are made in execution of laws.

Once there is a finding that the provisions of a law are in conflict with the provisions of the Constitution, there is nothing left for the Court or Tribunal to do but to declare the said provisions null and void. Indeed, from the provisions of Section 1 (3) of the Constitution, any provision of a law that is unconstitutional is automatically void. This has been the attitude of the Courts in a host of decided authorities such as NATIONAL UNION OF ELECTRICITY EMPLOYEES & ANOR. V. BUREAU OF PUBLIC ENTERPRISES[3] where the Apex Court held thus:

It is trite law that under the consistency test that the validity of any law is determined by its consistency with the provisions of the Supreme Law, that is, the Constitution. So that where any law is inconsistent with any provisions of the Constitution, such other law shall to the extent of the inconsistency be void, in support of this proposition see Military Governor of Ondo State v. Adewunmi (1988) 3 NWLR (Pt.82). Also, see Section 1(3) of the 1999 Constitution and also Adisa v. Oyinwole (supra) and Attorney General of Ondo State v. Attorney General of the Federation & Ors. (2002) 9 NWLR (Pt. 772) 222 per Uwaifo JSC.

See also the case of UGBOJI v. STATE[4] where the Supreme Court held as follows:

My lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria of 1999, as amended, had by Section one, made provision to emphasize or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the Constitution or is in conflict with the constitutional provision is null and void to the extent of inconsistency. See A.G. Ondo State vs AG of the Federation and Ors (2002)9 NWLR (Pt 772) 226.

From the above, an Election Tribunal needs no further special jurisdiction to make such a declaration.

Where an action is void, it is a nullity and a Court need not make an Order setting it aside before it becomes a nullity. This was the position in MAMMAN & ANOR v. HAJO5. Same principle should apply to a void provision of a law. In fact, the Court of Appeal held in the case of

ODEYALE & ANR. V. BABATUNDE & ORS.[5] that a person need not comply with the provisions of laws which violate their Constitutional right. Therefore, there is nothing sacred about declaring certain provisions of a law void for inconsistency with Constitutional provisions. If the Election Tribunal wanted to decline jurisdiction to declare Section 138 (1) (d) of the Electoral Act void, then it should not have made a finding that there was an inconsistency in the first place. A finding of inconsistency automatically renders the said provision of the Electoral Act void. If this point isn’t convincing enough, let’s consider the next point.

EFFECT OF SECTION 4 (8) OF THE CONSTITUTION Section 4 (8) of the Constitution provides as follows:

Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

The above provision grants Courts the power to review the validity of laws made by the National Assembly and Houses of Assembly. In the case of UNONGO v. AKU & ORS.[6], the Supreme Court enthused thus:

This Court had occasion to consider the scope of the first limb of section 4(8) of the Constitution in Attorney-General of Bendel State v. Attorney-General of the Federation & 22 Ors. (1982) 3 N.C.L.R 1 at p.4D wherein Fatai-Williams, C.J.N. as he was then, said: “By virtue of the provisions of section 4(8) of the Constitution, the courts of law in Nigeria have the power, and indeed, the duty to see to it that there is no infraction of the exercise of legislative

power, whether substantive or procedural, as laid down in the relevant provisions of the Constitution. If there is any such infraction, the courts will declare any legislation passed pursuant to it unconstitutional and invalid.” I may, for the purpose of emphasis, reiterate the opinion I expressed in that case to the effect that the courts ought not to entertain and must not entertain their jurisdiction under section 4(8) over the conduct of the internal proceedings of the National Assembly unless the Constitution makes provisions to that effect. I said at p.46: “I would endorse the general principle of constitutional law that one of the consequences of the separation of powers, which we adopted in our Constitution, is that the court would respect the independence of the legislature in the exercise of its legislative powers and would refrain from pronouncing or determining the validity of the internal proceedings of the legislature or the mode of exercising its legislative powers. However, if the Constitution makes provisions as to how the legislature should conduct its internal affairs or as to the mode of exercising its legislative powers, then the court is in duty bound to exercise its jurisdiction to ensure that the legislature comply with the constitutional requirements.” As the courts respect the right of the legislature to control its internal affairs so the Constitution requires the legislature to reciprocate in relation to the jurisdiction of the courts.

Eso, JSC, in ATTORNEY GENERAL BENDEL STATE v. ATTORNEY GENERAL FEDERATION[7] opined as follows:

The powers conferred on the courts by section 4(8) are wider than the inherent powers to interpret the constitutional system such as ours. The express provision of the powers vested in the courts and the mandatory nature of it indicate to my mind an intention on the part of the framers of the Constitution that the Courts should have this power to scrutinize the exercise of legislative power by the National Assembly. The inherent power is provided for in section 6(6)(d) and the ultra vires doctrine could be applied in respect of any law which violated section 4(2)(3) but yet, the Constitution stipulated section 4(8). It seems to be one of the many checks and balances contained in our

Constitution. It is also unique among written Constitutions.

Thus, Section 4 (8) of the Constitution grants the Courts full jurisdiction over laws made by the National Assembly and Houses of Assembly, including the power to nullify unconstitutional provisions of laws. It is apt therefore to say that in Nigeria at least, judicial review of legislation is a power exercised by virtue of Section 4 (8) of the Constitution. Now, let us reconsider the wordings of the said section.

Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

From the above wordings, it is clear that the same power vested in the Courts is also vested in Judicial Tribunals established by law. It therefore implies that whatever has been stated in the above authorities that applies to Courts of law also applies to judicial tribunals established by law, especially as they do not state that such powers are for the Courts “only”.

WHAT ARE JUDICIAL TRIBUNALS ESTABLISHED BY LAW?

Although the word ‘Tribunal’ or the phrase ‘Judicial Tribunal’ is not defined in the Constitution or any statute, respite can be found in case law. A judicial tribunal is simply any institution with authority to determine the rights, duties and liabilities of persons. This was the position of the Court in the case of UTONG & ORS V. UTONG & ORS.[8]  Where the Court of Appeal quoted approval the dictum of Kingdom CJ of the West Africa Court of Appeal. In this case, a Council of Elders performing customary arbitration, deriving its authority from custom, was held to be a judicial tribunal. From the above authority, a Judicial Tribunal need not be an institution with a formal setting. It is enough if it engages in dispute resolution and derives its authority from some law, charter or even custom.  Arbitration Houses may even qualify as judicial tribunals, going by the definition given by the Court of Appeal. Thus, once an institution which determines the rights, duties and

liabilities of persons is established by law, then it is a Judicial Tribunal established by law, properly so-called. Election Tribunals are institutions established by Section 285 of the Constitution for the determination of questions as to whether a person was validly elected to an office. Nothing screams “judicial tribunal established by law” more than this.

Section 4 (8) of the Constitution also implies that it is not correct to state that only the Courts have power to interpret statutes. Judicial Tribunals established by law such as Election Tribunals also possess that power. This is particularly so as Courts or Tribunals established by law do not adjudicate on disputes in a vacuum but in accordance with the position of the law. On this score, let us hear the words of the Court of Appeal on the ability of an Election Tribunal to interpret statutes in the case of AKUNYILI & ANOR V. NGIGE & ANOR[9] where it held thus:

Undoubtedly, this Court is not the only court saddled with the interpretation of the provisions of statutes relating to election matters. The Tribunal in the course of entertaining election petitions routinely interprets provisions of the amended Constitution relating to election matters as well as those of the extant Electoral Act.

The above is exactly what the judicial tribunals established by law do. They interpret laws that relate to their jurisdiction. The Election Tribunals, for instance, have power, by virtue of Section 285 of the Constitution, to determine whether some categories of persons have been duly elected. In determining the question, the Election Tribunal considers the facts of the matter vis-à-vis the position of the law (Electoral Act, Section 138 (1) (a) – (e) thereof) to see whether there are grounds for nullifying the election or returning the petitioner as elected. Nothing can scream “interpretation of statute” more than this. Since the Election Tribunal has power to interpret statutes, it remains to be seen how that power of interpretation does not extend to declaring unconstitutional provisions void.

CONCLUSION

One interesting aspect of the excerpt from the dissenting judgment is that the learned Tribunal did not cite any authority in support of its position. The void for inconsistency rule in Section 1(3) of the Constitution is automatic and need not the declaration of a regular Court to take effect, such a declaration is certainly not the exclusive preserve of the regular Courts either. Insofar as the Tribunal is empowered by law to interpret statutes in resolving disputes and for as long as it remains empowered by Section 4(8) of the Constitution to review the validity of laws made by the National Assembly and Houses of Assembly, it cannot be correct for the Tribunal to refuse to do the needful when it finds an inconsistency between the provisions of laws and the Constitution.

Written By Patrick O. Omodia, patrickomodia@gm ail.com

[1] At Page 24 of the Dissenting Judgment.

[2] See Section 285 CFRN 1999. See also the case of DINGYADI & ANOR V. INEC & ORS. ,(2011) LPELR-950(SC)

[3] (2010) LPELR-1966(SC) (P. 38, paras. B-E)

[4] (2017) LPELR-43427(SC) (P. 23, Paras. B-D) 5 Supra

[5] (2009) LPELR-8859(CA)

[6] (1983) LPELR-3422(SC) (Pp. 44-45, Paras. B-D)

[7] (1981) 10 SC 1

[8] (2013) LPELR-20201(CA)

[9] [2012] NGCA 14