Dickson v. Sylva [2017] 10 NWLR (Pt. 1573) 299 at 341-342, paras. B-C, per Sanusi, JSC:

“As rightly conceded by the learned silk for the appellant, issue of qualification is a pre-election matter as well as a post election matter. Thus, the tribunal, the Court of Appeal and indeed this court can take cognizance of it. As could be seen from the wordings of section 138(1)(a) of the Electoral Act, 2010 (as amended), issue of qualification of a candidate to contest an election could be a ground in an election petition to question election of a declared winner. Such a ground could be fought both at the tribunal as well as at the normal or conventional High Courts as both the tribunal and High Courts have jurisdiction. This court however held in the case of Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89 that where an aggrieved candidate or party decides to lodge his or its complaint/suit in the High Court, then he can continue to pursue his grievance up to this apex court which is obviously his final destination or bus stop. But if such candidate chooses to lodge his complaint at the election tribunal, if it is on National or State Assembly election, then the [final] bus stop is the Court of Appeal. In view of the provisions of section 246(3) of the 1999 Constitution. The choice therefore remains with the candidate.”

Photo Credit: Pulse.

Notes:

The position of the Supreme Court as stated above is quite explicit.

One important lesson we learnt from the case is that the case presents us with what clearly appears to be an exception. The facts of the case (earlier summarized here in a case involving both parties) are that the Appellant contested an election into the office of the Governor of Bayelsa State and was declared and returned as the winner. The 1st and 2nd Respondents challenged the Appellant’s return at the Election Tribunal.  In his reply to the Petition, the Appellant raised the issue of the qualification of the 1st Respondent to contest the election and his competence to present the Petition on the ground that, in line with section 182(b) of the Constitution, the 1st Respondent had been elected to the office of the Governor of Bayelsa State on two previous occasions and had occupied the seat for more than five years.

The Tribunal dismissed the 1st and 2nd Respondents’ Petition and upheld the return of the Appellant. However, the Tribunal failed to determine the objection raised by the Appellant concerning the qualification of the 1st Respondent to contest the election and his competence to file the Petition.

Dissatisfied,  the 1st and 2nd Respondents appealed and the Appellant also cross-appealed against the part of the Tribunal’s Judgment which failed to determine the Appellant’s objection. The Court of Appeal dismissed both the appeal and cross-appeal.

The Appellant appealed to the Supreme Court contending that the issue of qualification of a candidate to contest an election is both a pre-election and post election matter which is cognisable by the Tribunal, the Court of Appeal and the Supreme Court. He relied on the case of Dangana v. Usman (supra).

The Supreme Court restated the position of the law as quoted above but distinguished the instant case from Dangana v. Usman. Kekere-Ekun, JSC reasoned:

“The distinction between this authority [Dangana v. Usman] and the instant case is that the challenge to the 1st respondent’s qualification is not within the purview of section 138(1)(a) of the Electoral Act, 2010 (as amended). Since Chief Timipre Sylva [1st Respondent] was not declared winner of the election and was not so returned, the issue of questioning his competence to contest the election on any ground before the tribunal did not arise. It was a pre-election matter that ought to have been pursued through the High Court. I entirely agree with the lower court that the jurisdiction of an Election Tribunal lies within a very narrow compass as set out in section 9(2) of the 2nd Alteration Act to the 1999 Constitution. Once it had determined the person who was validly elected Governor of Bayelsa State, it had fully discharged its function. The lower court was right when it held that there was no basis for it to embark on an interpretation of section 182(b) of the Constitution.”

See pages 335-336 of the Report.

The Supreme Court dismissed the appeal.

Where a candidate contested an election but lost, it is therefore a waste of time arguing at the election tribunal that such a candidate was not qualified to contest the election in the first place as the issue has become academic.

Photo Credit: Dailytimes.

In effect, we lost the opportunity to have a definite judicial pronouncement on whether the 1st Respondent is qualified to run for the office of the Governor again in Nigeria. Perhaps, it could be said that the opportunity did not present itself well. The Appellant ought to have challenged the 1st Respondent’s competence to contest the election as soon as he was fielded by his party, the 2nd Respondent.