FAKAYISI MICHAEL DOTUN A.K.A. ‘WOLIMIKE’ & ORS VS DAVID GLORY OLUWASEYI

IN THE COURT OF THE STUDENTS’ JUDICIAL COUNCIL,

IN THE ADEKUNLE AJASIN UNIVERSITY JUDICIAL DIVISION

HOLDEN AT AKUNGBA AKOKO

SUIT NO: SJC/B/001

 

      MOTION NO: SJC/B/001/02

BETWEEN

  1. FAKAYISI MICHAEL DOTUN A.K.A. ‘WOLIMIKE’
  2. OYEBADE OLUWASEUN A.K.A. DOCTOR WHITE
  3. ELECTORAL COMMISSION, DEPARTMENT OF MATHEMATICS
  4. SCIENCE STUDENTS’ REPRESENTATIVE COUNCI……APPLICANTS/RESPONDENT

AND

  1. DAVID GLORY OLUWASEYI………………RESPONDENT/PETITIONER

 

 

Before their Lordships:

Honorable Justice David Oluwapelumi Adenegan (Chief Judge)

Honorable Justice Elebute Aanuoluwapo Peter

Honorable Justice Alli Rhoda Banke

Honorable Justice Arogbokun Femi

Honorable Justice Bankole Samuel Oluwapelumi

 

 

RULING

 

1.0 INTRODUCTION.

This suit was commenced in this Honorable Court by way of an originating summons dated 28th of August and filed on the 31st of August 2023, a written address in support of the motion on notice, a twenty two paragraphs affidavit, 2 exhibits marked Exhibit 2 and Exhibit 3, and a certificate of authentication filed and dated on the same day respectively.  The respondent to the petition responded to the claim by filling a motion on notice.

This is the ruling of the court to the motion on notice dated and filed on the 15th of September 2023 and brought pursuant to Order 19, Rule 1, 2, AND 3 OF THE CIVIL PROCEDURAL RULE OF THE STUDENTS’ JUDICIAL COUNCIL 2011 in the above named suit where in the applicant by way of preliminary objection calls in question the jurisdiction of this Honorable Court to hear and determine the suit and as a consequence, an order of this Honorable Court striking out of dismissing the suit for want of jurisdiction.

 

2.0 ISSUE FOR DETERMINATION:

The sole issue which has been formulated before this Honorable Court is whether or not the court is clothed with jurisdiction to hear and determine the suit.

3.0 LEGAL ARGUMENT:

The  counsel to the applicant submits that the suit before this honorable court is an election petition and not a civil suit, therefore the parties should be addressed as Petitioner and Respondent and not Claimant and Defendant as contained in the processes initiating the action.

Learned counsel to the Applicant  further explains that jurisdiction is the basis upon which a judicial adjudicator power is based the absence of which the whole proceedings amounts to a nullity. The counsel cited the cases of NDIC v. CBN &Anor (2002) LPELR-2000 (SC); Shuaibu and Anor v. Koleosho (2021) LPELR-53435 CA. 

Further, learned counsel to the applicant relied on the case of Madukolu v. Nkedilim (1962) 2 SCNLR 341 to expose the necessary ingredients which a court must possess in exercising jurisdiction namely:

  1. The court is properly constituted as regards the number and none of the members are disqualified;
  2. The subject matter is within the jurisdiction of the Court;
  3. All the condition precedent for the assumption of jurisdiction such as the appropriate notices have not been breached.
  4. The case has been properly commenced by due process of law;
  5. There is no feature of the case which prevents the court from exercising jurisdiction on it.

The learned counsel contends that this Honorable Court is not clothed with jurisdiction to hear and determine the suit on the ground that the court is not a competent court to try election petitions. The Counsel go the Applicant relied on the provisions of section 59(g) & (h) AAUASU Constitution to conclude that the Students’ Judicial Council only have the power to hear and determine civil matters as prescribed by the enabling law which established it. Counsel submits that where the words of a statute are clear and unambiguous, they should be given their ordinary interpretation. He relies on the case of Buhari v. Adeboye (2014) 4 NWLR (pt 1416) to conclude on this ground.

On this point the Respondent counsel responds that this honorable court has the jurisdiction to hear and determine matters of election petition which may be referred to it by the members of the Union.  The Respondent counsel makes reference to the provisions of section 5(b) (iii) AAUASU Constitution which provides that the jurisdiction of the SJC shall extend to all matters between the Students who are members of the Union. He submits that since it has been established that the litigants in this suits are members of the Union, the court can properly hear and determine such matter.

Further, the Applicant contends against the jurisdiction of this court on the ground that there is already established by the Constitution of the National Association of Science Students in Article 6 Section 2(1),(4) & (5) an Electoral Petition Committee which shall be competent to treat matters arising from the result of elections within the association. Counsel argued that the people of the faculty having unanimously bound themselves by the provisions of their constitution should live by it.  Counsel makes reference to the provisions of Article 1, Section 3(1) & (2) CNASS 2017 which affirms the Supremacy of the Constitution over the students of the Association. Counsel submits on this point that, there is already a laid down procedure in the constitution of the Association which can not be varied by filling an action in the SJC, therefore the proper court to have is the Electoral Petition Tribunal.

In responding to this argument, the respondents argue in their written address that there was no properly constituted EPC at the time of the Election. They further rely on paragraph 7 of the Affidavit to support this point. Counsel argues that burden of proof lies on he who asserts the existence of a fact.  Further,  respondent counsel contends that assuming without conceding that EPC exists, the matter could not have been properly treated by the Tribunal because it falls outside the scope of their establishment.  Counsel avers that the scope of EPC is to determine election validly conducted and in this case, what is in contest is the eligibility of a candidate.  Counsel relies on the case of OBIH V. MBAKWE & ORS (1984) LPELR -2172 SC

Further advancing his arguments, the applicant argues that the respondent lacks the locus standi to challenge the result of the election, and that therefore the court lacks jurisdiction.  Counsel contends the interrelatedness of locus standi and jurisdiction and relied on the case of AJAYI v ADEBIYI (2012) 11 NWLR (Pt. 1310).  In addition, counsel argues that the proper persons who can challenge the result of an election or present petition in that regard is either a candidate in the election or a political party which participated in the election.  He based this arguments on the provisions of Section 133(1) Electoral Act, 2022. On this point, the learned counsel to the applicant submits that the only a person from the Mathematical Science Department is fit an proper to file a petition to challenge the result of an election to the post of an honorable in that department. Counsel further submits that the position could have been different if the petitioner was challenging the results of the Science Students Representative Council Election which produced the 1st Respondent to the Petition.

Responding to the averment, the Claimants/respondent counsel avers that it is not the electoral process that is in contest but the eligibility of the first respondent to contest. Learned counsel also pleaded the provisions of SECTION 133(1) ELECTORAL ACT 2022 to show that the respondent to this application was challenging the candidacy of the 1st Applicant to validly contest in an election in which the Respondent/Claimant was also a candidate. Counsel thus submits that locus standi exists.

Lastly, the counsel to the Applicants/Respondents calls in question the jurisdiction of this court on the ground that the time within which to file a petition as prescribed by the CNASS 2017 has elapsed and therefore the suit is incompetent. Learned counsel pleaded the provisions of ARTICLE 6, Section 2(9) of CNASS 2017 which is to the effect that all petitions to the EPC shall be submitted not later that 48 hours after election. Counsel argues that time is essential and sine qua none to the filing of election petitions and therefore an election petition cannot be competent where it has been filed out of time. The learned counsel submits that this is because the nature of election petition is that it is sui generis. Counsel relies on the case of LABOUR PARTY V. BELLO (2017) 2 NWLR (pt. 1548) 145, 172 PARA A-B; DICKSON V. SYLVA (2017) 10 NWLR (pt 1573) 299, 322. Counsel submits on this point that the suit cannot be maintained having been filed out of time.

The learned counsel to the Respondent/Claimant has argued that the statute of limitation is not applicable in this instance.  The counsel relies on the case of CHIGBU V.  TONIMAS NIG. LTD & ANOR (2006) LPELR-846 (SC) to show that the ideology behind statute of limitations is to prevent the inconvenience and embarrassment to the defendants whose witnesses may have been out of reach or documents lost.   Counsel further contends that where there is an allegation of concealed fraud, the statute of limitations will not apply to limit the time within which the file the action until the concealed fraud have been discovered.  The learned counsel relies on the cases of  AZIE V. AZIE & ORS (2014) LPELR -233778 (CA); ANWADIKE V. ADMINISTRATOR GENERAL OF ANAMBRA STATE (1996) 7 NWLR (Pt. 460) 315.  Learned counsel avers that as contained in paragraph 4 of the Affidavit Supporting his written address, it was averred that the inauguration and election took place on the same day and that this was done in order to conceal the fraudulent  swap of candidates in the election.  Counsel further argues that there was no constitution of an electoral petition Committee and therefore submits that the statute of limitations is inoperable.

4.0 RATIO:

I shall now turn my eyes to decide on the arguments that have been canvassed in support and against this application. These arguments will be examined under different heads as canvassed by the parties namely:

  1. The misnomer of the parties as Claimant and Defendant.

The averment of the parties as claimant and defendant in the originating process is not a valid ground to contest the authenticity of this suit before this Honorable Court.  As it has been rightly canvassed by the Respondent/Claimant, the authority of REGISTERED TRUSTEES OF ACTS OF APOSTLE CHURCH V. FATUNDE & ORS (2015) LPELR -24727 (CA) produces the effect that the wrong use of name by a party may not substantially vitiate the competence of a suit.

Further the commencement of an action in court by an inappropriate process will not operate against the matter to defeat substantial justice.  See MOHAMMED & ANOR V. SUCCESS & ORS LPELR – 50276 (CA). The implication is that although the party a suit may have commenced an action before this court by a wrong process, but in the interest of substantial justice, the rules of this court is flexible to allow parties to adjust and amend processes so far as it does not jeopardize the interest of any party to the proceeding. See the provision of ORDER 4(1) SJC Rules, 2021 which elaborates on the effect of non compliance. The setting aside of a case for the wrongful commencement of an action may only be done upon an application by a counsel and the use of may in the construction of the rules of this court implies that it is a matter subject to the discretion of the court which shall be exercised judiciously at all times. In the absence of anything to the contrary, I hold that this ground is not sufficient to oust the jurisdiction of this court and I resolve this ground in favour of the Claimant/Applicant.

  1. Whether the subject matter is within the scope of what can be presided over by the Students Judicial Council.

Jurisdiction of course is the life wire, the bed-rock and the foundation of every judicial and quasi-judicial proceedings the absence of which whatever is done by the court amounts to null and void and of no effect.  See PETROJESSICA ENTERPRISES LTD &ANOR V. LEVENTIS TECHNICAL CO LTD (1992) LPELR-2915(SC)

Further, to understand jurisdiction, a court must deeply introspect and observe the conditions laid down in the notorious case of Madukolu v. Nkedilim (1962) 2 SCNLR 341 where the conditions were highlighted thus:

  1. The court is properly constituted as regards the number and none of the members are disqualified;
  2. The subject matter is within the jurisdiction of the Court;
  3. All the condition precedent for the assumption of jurisdiction such as the appropriate notices have not been breached.
  4. The case has been properly commenced by due process of law;
  5. There is no feature of the case which prevents the court from exercising jurisdiction on it.

To examine whether a court has the jurisdiction on a particular subject matter, one must look into the facts of the case presented before the court, the parties presenting the matters and whether the enabling statute establishing the court allows it to entertain such matter. See

In this regard the enabling law establishing the Students Judicial Council is the AAUASU Constitution. Particularly, section 5(b)(iii) of the AAUASU SJC confers on the jurisdiction to hear and determine all matters between students.

In performing our constitutional role as judges, we must give effect to the provisions of the constitutions as intended by the draftsmen and not by the parties to the proceeding. A proper construction of this provision must produce the effect that the jurisdiction of the court is wide and stretched in determining what may affect the rights and interests of the members of the AAUASU.

I completely disagree with the narrow and restricted construction of the learned counsel to the applicant that the drafters do not intend the SJC to correct societal demeanor in the area of election petitions. This interpretation looks very biased, and illogical, and absolutely incoherent with the course of justice. In fact, I must say it is nothing but a product of a lazy research work and lack of information about the precedents of this honorable court.  To say otherwise will greatly minimize the categories of matters in which this court may entertain grievances and alt consequently limit the rights of AAUAITES who may lack access to a proper election tribunal where none is established.  See the case of BABATUNDE KEMISOLA v. NACAS (Unreported) where this Honorable Court per Shaba Olumide David C.J. (as he then was) rightly entertained an election petition matter in the court.

I therefore resolve this ground in favour of the Respondent/ Claimant.

  1. Whether the matter could have been properly tried by the Electoral Petition Tribunal.

To this salient ground I shall now turn my eyes.  The Applicant canvassed in his written address the argument that there is established by the Article 6 section 2(1) (4) (5) CNASS 2017. It is salient to hold strongly at this point that constitutional interpretation is different from every other forms of construction of statute. Thus, in order to uphold the tenet and precepts of the society the constitution which is the basis of the society must be given effect to.  A proper interpretation of the provisions of article 6 section 2(1) (4) (5) CNASS 2017 implies that presumably, an institution has been established within the faculty to cater for matters on election petition.

It is a settled principle of law in Nigeria’s electoral jurisprudence that election petitions are sui generis and therefore jurisdiction must be specially conferred on a tribunal before it can entertain an election petition matter.

The drafters of the CNASS 2017 have by the way of constitutional instrument established permanently a body called Electoral Petition Tribunal.  The drafters further have by the write words established how the members are to be elected.  Therefore, the averment of its non existence in paragraph 7 of the Affidavit of the Respondent/Claimant appears very much evasive and elusive to me.  The law is clear that what has been by law established can only be by law demolished. To hold otherwise will mean to allow chaos to thrive in our society.

Further, I must comment on the tardiness involved in pleading the facts before this honorable court.  The law is well established that relevance is the sole of admissibility.  See AVONG V. K.P.R.C. LTD (2002) 14 NWLR (pt 788) 508 at 530

Further, in the determination of relevance, one must look into the facts pleaded by the parties in the processes which commenced the suit before the court.  See Peter Obi v. INEC & ORS (Unreported: 2023 CA PEPC/001) It is well settled that evidence adduced in support of facts that are not pleaded before the court goes to no issue. See SECTION 1 EVIDENCE ACT 2011

The facts pleaded in the originating summons filed by the Respondent/Claimant before this honorable court as see in paragraphs 2.0 to 2.4 in the brief of argument in support of the originating summon does not contain any fact as to whether there was an electoral committee which was properly constituted or not. Therefore, this honorable court disallows the Claimant from bringing up further facts which are not contained in their originating process as this would constitute several embarrassments throughout the proceeding.  Therefore this honorable court expunges the paragraphs 4, 5, 6, 7 in the Counter affidavit of the  Respondent/ claimant as they are not adduced in support of any facts pleaded before the court.

Lastly, the arguments of the Respondent/Claimant to the effect that the EPC could not have rightly treated the case of eligibility is discountenanced. I shall proceed to borrow knowledge to the provisions of section 134(1)(a) Electoral Act 2022 which provides that an election may be challenged on the grounds of whether any person is eligible to contest in that election. Thus, I do not agree with the argument that the EPC could not have validly treated a petition as to whether any person is eligible to contest the election as it is generally within the powers of Election Petition Tribunals accord the Nigerian electoral jurisprudence to entertain questions of eligibility.

I therefore proceed to resolve this issue in favor of the Applicant/Defendant that the proper court which has been by law established to entertain election matters arising from the faculty of science is the Electoral Petition Tribunal established by its constitution.

  1. Incompetence of the suit on the ground of locus standi.

Locus standi in election petition is not only a feature of but a necessity and compulsory requirement in all election petition matters.  The presence or absence of locus standi in a person challenging the result or process of an election goes to the root of whether he can or not maintain the suit before the court.  Where the defendant lacks locus standi, he does not only lack the right to sue, but it also rips off the cloth of jurisdiction from the body of the court as proper parties are therefore not before the court.  See AJAYI v ADEBIYI (2012) 11 NWLR (Pt. 1310).

While a party who is not a candidate in an election may not validly challenge the outcome of it, in  NNAMANI V. NNAJI (1999) 1 LRECN 96 , 102, the court has rightly held that where a person is a candidate in an election, the court lacks the jurisdiction to deny him of the standing to sue in relation to the election.

However, one question that springs up controversy here is what election is being challenged? In deciding this question, it is important to look into the processes filed before the court and determine from the circumstance of the case.  Introspecting the processes which initiated this petition, the court take cognizance of the construction of paragraphs 2.0 to 2.4 of the written address in support of the originating process, the parties before the court and the reliefs sought.

I think if the Respodent/Claimant is right is contending that they do not challenge the validity of the departmental election, then the proper parties have not been joined to the suit. It is proper for the Respodent/Claimant to have joined the electoral committee which conducted the in-house election which produced the 1st Applicant as the speaker to this suit if indeed it is the speakership election that is in contest to allow them answer to the claims  too. See Eyitayo Jegede v. Akeredolu & Ors

The absence of the proper parties before the court direct my mind to only one thing, the respondent does not intend to challenge the result of the election declared by the Committee which conducted the speakership election. Thus the only party they serve interested in suing from their processes is the Electoral Commission of the Department of Mathematics. In the light of this, I hold that the election being challenged by the Respondent/Claimant is the departmental election.

From the paragraph 2 of the affidavit in support of the originating process, the  Respodent/Claimant avers to not being a member of the mathematical science department. This therefore calls into question his position in law to go on a voyage and activism to fight for the interests of mathematics science department which he lacks the standing to do.

I resolve that the Respondent /Claimant lacks the standing in law to challenge by way of petition the election of a department which she does not belong to.  To hold otherwise will throw our society into a state of chaos and this honorable court may soon be embarrassed by a student of University of Ibadan challenging the candidature of an aspirant in the AAUASU Election in a petition court sitting in AAUA.

  1. Whether the petition can still be maintained for being filed out of time.

The provisions of the CNASS has not only laid down the proper court clothes with jurisdiction to entertain election petition claims, but also stipulates the time within which to file it. Article 6, Section 2(9) CNASS 2017 has clearly stipulated that petitions maybe entertains on election matters within the association provided that they are filed within the period of 2 days. Election petition are special proceedings which must be commenced within the appropriate time stipulated by law.

The argument by the learned counsel to the Respondent/Claimant that concealment of fraud may limit the application of limitation status is laudable but irrespective cannot influence the nature of election petitions. This is because of the policies which surrounds election petition and thus it must be decided as soon as possible. The court has rightly expressed in the case of Orubu v. NEC [1988] 5 NWLR (pt. 94 323) 347  that election petitions are “regarded with an aura that places them over and above normal day to day transaction which gives rise to ordinary claims in court.” Therefore, ordinary rules of civil and criminal proceeding may not effectuate them. See Falae v. Obasanjo   1999] 6 NWLR pt. 606, 283

The critical question is if the Respondent/Claimant turns around at this point to go back to do the needful, can it still be done within time? Obviously not possible! Therefore, I resolve that the time space within which to file the action has elapsed and the action may therefore be further incompetent.

  • CONCLUSION

Having upheld some of the grounds upon which this preliminary objection has been filed, it is therefore the resolution of this honorable court that the court lacks the jurisdiction to entertain the substance of the claim. We therefore make an order of dismissal of the suit for want of jurisdiction.  I make no award as to cost.

………………………………..

Honorable Justice David O. Adenegan

Chief Judge SJC

 

………………………………..

Honorable Justice Elebute Aanuoluwapo

Lord Chancellor SJC

 

………………………………..

Honorable Justice Alli Rhoda Banke

Member SJC

 

………………………………..

Honorable Justice Arogbokun Femi

Member SJC

 

………………………………..

Honorable Justice Bankole Oluwapelumi Samuel

Member SJC

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