Fact of the Case This is an action brought by the purported speaker of the science student’s parliamentary Council (SSPC), Hon. Tijani Sodiq against the duo of Hon. Yemi Akerele and the Speaker of the students’ parliamentary Council, Lagos State University, Students’ Union Government. A diligent application of fact distilling principles reveals that, the plaintiff and the first defendant, being full students, in faculty of science, are both members of the science students parliamentary council. They both contested for the speakership position, and at the screening, the plaintiff amassed 83.09 point, the highest among the three aspirant, for the coveted speakership position. The first dependent finished second, but was nevertheless qualified to contest the election. At the conclusion of the election, the plaintiff emerged the winner and his speakership reign began. The first dependent, then took a petition to the electoral petition committee (National Association of Science Student, LASU) questioning the eligibility the plaintiff for the speakership position. The electoral petition committee declined to hear the matter without any explanation. At this time, the students’ judicial council was not in place, and the first defendant, took his petition to the student parliamentary council. This legislative organ then, setup a committee to look into the matter. The resolution of this committee was sent to the students Affairs Division for execution. The resolution, which in effect, direct, the plaintiff to vacate office and relinquish all the property of the office, in his possession, was communicated to the plaintiff, by the Students' Affairs plaintiff. Three issues have been raised for determination 1. Whether, the plaintiff satisfied the constitutional requirements stipulated by National association of science students constitutions for speakership position. 2. Whether, the students’ parliamentary, council through its ad-hoc committee can look into election petition and remove speaker of science students parliamentary council. 3. Whether when there is a breach of the constitution by the procedure rule of any organ-executive or legislative, the constitution shall prevail and that other law shall to the extent of the inconsistency be null and void. Now, to the determination of the issues. The first one reads; whether the plaintiff satisfied the constitutional requirements stipulated by National Association of science students constitution for speakership position. This is the most pivotal of the three issues. The relevant provision on the qualification requirement of all speakership aspirants, in the faculty of science is article 8(3) (1) f the NASS-LASU, constitution. It provides that; such prospective speaker,must have registered as a student for at least two regimes. Furthermore Article 5(1) (a), provides for the composition of the SSPC, to include the following. (a) One elected member from each level of each department in the faculty. (b)Presidents and general secretaries of each department (c) Every member of the LASUSU-SPS representing each level of each department, within the faculty. The provisions of these afforested articles are important to determining the qualification of any candidates. This is concord with the decision in SAIDU V ABUBAKAR (2608)12 NWLR (pt.1100) 201 CA, where it was held that, the question, whether or not a person is qualified to contest an election is to be determined exclusively by reference to the constitutional requirements for qualification to contest. Having outlined the relevant laws, I direct my effort to testing them against relevant facts. Throughout the hearing, it was never an issue, whether the plaintiff had registered as a student for at least two academic sessions. The issue is on the other requirement, which dwells on whether the plaintiff had served for two regimes. The plaintiff, with matriculation number, 090551031, is currently in three hundred level and to fulfill the requirement set-out; in Article 8(3) (1) 96), must prove to have served as an honourable, when in 00L and 200l. both parties through their briefs and respective witnesses, acquiesce to the plaintiff, being an honourable member in 200L. the testimonial of DW3 (Aminu Lukman Enitan), corroborated by PW 1 (Fasasi Raheem), indicates that the plaintiff was an actin clerk of the house, during his 200L tenure in the SSPC. The question then arises; was the plaintiff an honourable in 100L? This is a question of fact and must be decided on the evidence tendered by the parties. Article 5(1) (a) provides that the SSPC, shall constitute inter alia. (a) One elected member from each level of each department in the faculty. This means that each class, of all the several department in the faculty of science must have a representative. The first dependent did not only represented his department and class, during the 2009/2010 academic sessions but was also the diet whip. His certificate of office was tendered as exhibit 01. He also served for the 2010/2011 and 2011/2012 sessions; making it right say that he had contested for more than two terms. On the other hand, the plaintiff represented the mathematics constituency during his two hundred level days. However, heavy doubts surrounds whether the plaintiff was elected as an honourable in 100L. Election was defined in IDRIS V All Nigeria Peoples Party (2008) 8 NWLF (pt.1080)CA as “a process of choosing by popular roles, a candidate for a political office in a democratic system of government”. It goes unhindered therefore, that election is a game of number – a voice of the majority as to who the leader should be it need not go through any formally provided the result was a consequence of “popular votes”. All the witness called but PWI (Nejo Ohimide) testify to the existence a custom in the faculty of science which allow the Head of class of 100 classes (who emerged winner as a result consecutive) to be deemed automated elected into the SSPC. Neither PW1 nor PW2, was able to say satisfactorily that the plaintiff was actually declared the HOC. While the latter expressly emergence of the plaintiff as a HOC, the farmer, simply said he was oblivious of the situation and circumstances of the directed to the plaintiff as the HOC, as he resumed late for the 2009/2010 session. Credible testimony was given by DW1 and DW3, which indicates that not the plaintiff but one Ahmed a.k.a 'Informatics' that emerged the HOC of the plaintiff’ class in 100L and was, as a matter of custom, the class representative at the SSPC. DW3 was, at that time the Auditor-General of the SSPC and was physically present at the whole procession. There was the issue of certificate of office Article 12 provides that every officer of the Association, on successful completion of the tenure of the office shall be awarded a certificate of office, which shall be duly signed by the dean of students’ Affairs and a staff Adviser. Article 12/4 provides for officers who are entitled to the certificate. They are: (a) The honourable speaker (b)The deputy speaker (c) The clerk (d)The chief-whip (e) The auditor-General Though the aforementioned officers where entitled to the certificate, issued to all member, certificate office I need say here, in passing that those certificate, were invalid because contrary to the provision of Article 12 above, the certificates were signed by the then speaker without the signature of the Dean of Students Affairs and a Staff Adviser. However, the issue is not founded on the validity of Ho certificates. It is on whether the plaintiff actually served as an honourable during the 2009/2010 session. Since all members of the home was issued this certificate by the speaker, this common sense to expect the plaintiff it to producer his throughout the proceedings, he couldn’t produce it. On this basis, I hereby hold, as my conclusion on this issue that, in so far as the 2009/2010 session is concerned, the plaintiff, Honourable Tijani Sodiq, was not a member of the science students parliamentary council. The ripple effect of this, on the main issue is tha , the plaintiff has not served two terms, as required by Article 8(3) (1) of the NASS-LASU constitution. It is a time-honoured rule of law that he who asserts must prove – see Sp31 of evidence Ad, 2011. Furthermore, it was held in AJIMOBI VINE & ORS – (2009) LPELR –CA/,The burden is on the party that alleges the irregularity in an election to prove it. It is the respondents that alleged the disqualification of the plaintiff and they’ve proved this to the satisfaction of the court. In addition, non-qualification could be a ground for contesting election – see SAIDU V ABUBAKAR (2008) 12 NWLR (pt 1100) 201 CA, AARARUME V INEC (2007) 9 NWLR (pt 1038) 127 CA, ONUIAWE V EMELUMBA (2008) 9NWLR (pt. 1892) 371 CA. This penultimate paragraph of my abridgment, shall be a justification of this decision, as still being right on time. It may be argued that the respondents should have raised the objection as regards the disqualification of the plaintiff, before the election. I reply with a passage from the judgement of ONNOGHEN 3SC in ADEOGUN V An issue as to qualification of a candidate for an election remains a live issue before or after the election. This is why a candidate wholes and election is empowered to raise as a ground for the nullification of the said election the issue of the qualification of a candidate for the election which is by law assigned to the election tribunal as a post election matter for determination. I dedicated the message in this last paragraph of my judgement to both parties, without fear or favour. The message is summed up in these words; the decision reached by a court, remains valid and in force for all intents and purpose, until it is vacated or set-aside on appeal. See IJEBUODE LOCAL GOVT V ADEDEJI BALOGUN CO LTD (1991) 1 NWLR (pt.166); Komolafe volume (1993) INWLR (pt 268) 213; In Re Diamond Bank Ltd (2002) 17 NWLR (pt 795) 170. I concern with the decision of my learned brothers on the second and third issues and particularly, with the reliefs, which shall be awarded by environment. SHOETAN J. On issue two learned Snr Counsel for plaintiff in his brief/statement of claim, said ….. it is not an incorrect assertion to state that nothing can be built on nothing because the something that will receive the nothing.” He further stated that: the propriety of the students parliamentary counsel is doubtful”. Perhaps the learned Snr. Counsel intended something different but I cannot infer this leas the court becomes an instruments of speculation. The purpose for quoting the statement of the learned Snr counsel for plaintiff is for the avoidance of doubt. Learned Snr counsel further made reliance on Art 6 (9) of NA9S constitution & (10) which is with respect to “electoral committee and election petition committee respectively. Must say that the provisions of this article ha never been in doubt. As the 1st defendant had exhausted this remedy or provision of the land by writing a petition thereto, marked exhibit D2. Based on the evidence before this court 1st defendant made frantic effort to get justice within the faculty level. The 1st defendant went as for as writing the Dean of the faculty in a letter marked exhibit D4. I venture not to say Ubi jus Ibi Remedium. The defendant living exhausted all local sometimes applied to the SPC which swiftly acted. In the statement of defense, the defendant placed reliance on the “doctrine of necessity” learned Snr counsel for defendant contends that students parliamentary council (SPC) acan through its adhoc committee look into election matters or petition and remove the speaker of the science students parliamentary council based on this doctrine. Let me reiterate that the doctrine of necessity is a rarely used political concept or utilitarian idea and is used to define and validate extra constitutional issues that fall outside the preview of the constitution but are necessary to preserve political stability. The fundamental objective of this doctrine is to satisfy the exigencies which have been created by certain situations …. the contemplation of the constitution or the rule of law; see the Pakistan Governor Gen 1954 “The Doctrine of Necessity in Perspective by Kayode Oladele. May I at this juncture, invoice the provision of Art 1 Section 2 of the NASS constitution with respect to the supremacy of that constitution, it provides thus: ….. Any other law(s) apart form, those stated in the constitution of the Lagos State University students Union….. that runs contrary to this constitution shall to the extent of inconsistency be null and void.” The legal effect of above provision is that the NASS constitution is conditional upon LASUSU’S and other law therein listed. The LASUSU SPC having received a petition, constituted an ad-hoc committee via the speaker herein referred to as 2nd defendant. Pursuant to Section 64 Lasusu constitution 2012 see Section 64(1) (7) It provides thus: “The SPC may constitute an ad-hoc committee wherever it deems fit. (2) Except where specifically stated in the provisions of this constitution the speaker of the SPC shall appoint the chairman and surety to all committees. See also Section 15 (1) (g) Lasusucons with respect to the duties of the SPC. FOR THE AVOIDANCE OF DOUBT, AN Adhoc committee is: A special committee established for a particular purpose or a limited time. A legislature will ordinarily establish special committees for non legislative purpose, such as writing memortals. Procuring chaplains, determining the qualifications of members and settling election disputes – Black Law Dictionary 9th ed. Note the moment an ad hoc submits its report it dissolved. See Section 66(1) Lasusu cons 2012. Let me emphasis that election matter are purely within the jurisdiction of the election petition Tribunal. Its tenured Snr. Counsel for plaintiff rightly stated. Section 285 (1) of the 1999 constitution as amended, dearly vests the exclusive jurisdiction in an election matter in the election tribunals See ANPP V Returning Officer Abia State (2007) 11 NWLR (Pt 1045) (434 – 435 para (-DH-A) Ogundade JSC. However, this case borders on the laps of time with respect to filing an election petition and therefore not in parliamentary with the instant case and thereby distinguished. (the case before us brothers on propriety of the ad hoc committee, constitution and removal arising therefrom). Having regard to the aforesaid, that is to say the above statutory and judicial authorities I hereby resolve the 2nd issue on defendant’s favour and hold that the SPC can through its ad hoc committee look into election petition and remove the said speaker of the sciences students parliamentary council plaintiff. ISSUE THREE Whether when there is a breach of the constitution by the procedure or rule of any organ-executive or legislative organ, the constitution shall prevail and that other law shall to the extent of inconsistency be null and void? It is an undisputed principles of law that the 1999 constitution of the federal Republic of Nigeria is the good norm upon which other laws in Nigeria, takes its reflection. SI(3) of the 1999 constitution of the Federal Republic of Nigeria provides: “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 its inconsistency be void”. Moreso, in any proceedings constituted in court or tribunal, it is expedient that parties to the suit must be heard as this is one of the pillars on which the doctrine of natural justice is built. This principle of hearing the other side (Audi alteran par tem) is also entrenched in S36(1) of the 1999 constitution of the Federal Republic of Nigeria. It provides inter alia: “In the determination of his civil rights and obligation including any question or determination by or against any government or authority, a person shall be entitles by law and constituted in such a manner as to secure its independence and impartiality”. S 36 (6) of the constitution provides among others that “the party shall be entitled to defend himself in person or by legal practitioner of his own choice”. Both the plaintiff and the defendant relied heavily on the case of Adigun VAG Pyo State (1997) 1 NWLR Pf 53 at 678SC where Norameka-Agn JSC posited that the principle of fair hearing has been incorporated in our jurisprudence that a man cannot be condemned without being heard. It is my position that any law or constitution or body of rules which does not uphold the principle of fair hearing is inconsistent with the grundnorm and is therefore a nullity. Having stated these the DW2 chairman of the ad hoc committee in person of Honourable Jubril Kareem in his testimony stated that both parties were infact informed of the hearing a day to the hearing and it was conducted in an open place that is the Arcade common room. The plaintiff also appeared in this hearing and was given the opportunity to air his complaint. He was also given the opportunity to tender evidence to the adhoc committee established by the student parliamentary council Lagos State University Student Union. The adhoc committee in this case is likened to a tribunal which the students parliamentary council of the Lagos State University student Union has the inherent power to establish going by S64 of the LASUSU constitution these facts were not disputed by the plaintiff. It is my conclusion therefore that the adhoc committee adhered to the provision of S 36 of the 1999 constitution and did not breach the provision aforesaid as opportunity was given to both parties to air their views and to tender evidence before the adhoc committee. Another principle of Natural justice is the principle of Nemo Judex in causua which means you cannot be a judge in your own cause. This rule is established to prevent any form of bias on the part of the judge. An interest or a stake in a matter that will disqualify one is probably an interest that makes one to desire earnestly that the matter should go in favour of a particular side; this lucidly denotes miscarriage of justice. See ERIBUMA v Obiorah (1999) 8 NWLR pt 616 p.622. In the determination of a likelihood of bias, the test is not subjective but objectives. It is in structure to observe that the test of bias surpasses mere suspicious of bias. There must be a real likelihood of bias. In the words of Nnamani JSC in Exparte Olakunmi “As regards bias or likelihood of bias, the common law has disqualified an adjudicator from adjudicating wherever means “an operative prejudice”. Whether conscious or unconscious” (1985)1 NWLR pt4, 652 SC at 668SC. It was alleged by the counsel to the plaintiff that the adhoc committee was chaired by DW2 who hailed from the same from as the defendant and as such the plaintiff counsel suspected the likelihood of bais against the plaintiff. However, as it has been asserted above, mere suspicion of bias is not sufficient to disqualifying the chairman from adjudicating on the matter; only a real likelihood of bias will suffice. This the plaintiff tailed to establish. Furthermore, it is in conceivable giving the nature of the environment, Lagos State University which is largely populated by Lagos grand. It may be a matter of coincidence that the chairman trails from the same town as the defendant. That fact, its own shouldn’t suffice to set aside the decision on the grounds of the judge being biased, as it is only a mere suspicion. Where there is more to this coincidence, it behaves on the plaintiff to establish that there was a real interest that may disqualify the chairman from adjudicating on the matter see Deduwa V Okorodudu (1976) 9-10SC 329. Having stated these, I have no hesitation in holding that there was no form of bias in the constitution of the committee. From the aforesaid, both principles of audi alterain parten & Nemo Judex in causa sua are the pillars of Natural justice, none of which have been breached by the adhoc committee therefore hold that the plaintiff not entitle to the declaration that the speaker was denied his constitutional right to fair hearing to grant remedy nrex 2,000 S40 (1) (2) of LASUSU cons. The court hereby declares: That based on the evidences before use; 1. The plaintiff was never elected as an honourable when he was in 100L and as such did not satisfy the requirement stipulated by Article 8(3). 2. The SPC through its ad hoc committee can look into election petition under the constitution (LASUSU) 2012 3. That the plaintiff was infact given fair hearing before the Adhoc committee of the SPC. We also make an order for nominal damages of N500.00. This judgement is dated on the 23rd of August, 2012 at 3:00pm at the Moot court. Judges: YUSUF SHOETAN AUSTIN ENWEREN YETUNDE ONAGORUWA __________________ ABIMBOLA OLAYINKA Chief judge
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