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Can there be unlawful exclusion where there is no valid nomination?

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INEC v. ANDP & ORS

CITATION: (2020) LPELR-50950 (CA)

In the Court of Appeal
In the Abuja Judicial Division
Holden at Abuja

ON FRIDAY, 2ND OCTOBER, 2020
Suit No: CA/ABJ/EPT/GOV/704/2020

Before Their Lordships:
ADZIRA GANA MSHELIA Justice, Court of Appeal
OBANDE FESTUS OGBUINYA Justice, Court of Appeal
PETER OLABISI IGE Justice, Court of Appeal
JAMILU YAMMAMA TUKUR Justice, Court of Appeal
FOLASADE AYODEJI OJO Justice, Court of Appeal

Between
INDEPENDENT NATIONAL
ELECTORAL COMMISSION (INEC) -Appellant(s)

And
1. ADVANCED NIGERIA
DEMOCRATIC PARTY (ANDP)
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. DOUYE DIRI -Respondent(s)

LEADING JUDGMENT DELIVERED BY OBANDE FESTUS OGBUINYA, J.C.A.

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FACTS
This appeal is against themajority decision of the Bayelsa State Governorship Election Tribunal, holden at Abuja, coram judice: Yunusa Musa, J. (Member) and S.M. Owodunni, J. (Member) in Petition No: EPT/BY/GOV./03/2020, delivered on August 17, 2020. The Chairman of the Tribunal, Mohammad I. Sirajo, J., dissented in a minority judgment. Before the Tribunal, the appellant, the second and third respondents were the first, second and third respondents respectively while the first respondent were the Petitioner.

INEC conducted election to the office of the Governor of Bayelsa State on November 16, 2019. Prior to that, it issued Regulations and Guidelines for the conduct of that election. Several registered political parties partook in the election. The 3rd Respondent was the flag bearer of the 2nd respondent, the Peoples Democratic Party (PDP). The 1st respondent had Lucky King-George and Mr. David Peter Esikuma and Miss Inowei Janet as its candidates for the positions of Governor and Deputy Governor respectively. Lyon David Pereworimini and BiobarakumaDegi-Eremienyo, were the candidates for the All Progressives Congress (APC). The 1st respondent alleged that the appellant unlawfully excluded it and its candidates from participating in the election. After the polls, the appellant declared and returned Lyon David Pereworimini of APC as the winner of the election on November 17, 2019.

The 1st respondent and its candidates, on December 5, 2019, filed a petition against the election on grounds of unlawful exclusion from its conduct. At the behest of those petitioners, that petition was dismissed on January 21, 2020. The 2nd and the 3rd Respondents challenged the declaration and return made by Appellant in the Tribunal. The petition moved from the Tribunal via the Court of Appeal to the Supreme Court. On February 13, 2020, the Supreme Court disqualified the candidates of APC and nullified the declaration/return of the November 17, 2019 and ordered the Appellant to declare the candidate with the highest number of votes in that election of November 16, 2019. In due obedience to that decision, the Appellant declared the 3rd Respondent as the winner of the election on February 14, 2020. Sequel to return, the 1st Respondent, with its three candidates whose names were later struck out on their application, beseeched the Tribunal, via a Petition filed on February 26, 2020. At the end of trial, the Tribunal granted the petition.

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The Appellant was aggrieved by the decision and appealed to the Court of Appeal.

Issues For Determination
The Court determined the appeal on the following issues:
1. Whether having regard to the petition and the evidence led, the Petition which is a challenge on the action or decision of the appellant in respect of nomination of candidates of the 1st Respondent for the Bayelsa State Governorship election, is not a pre-election dispute as defined by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and thus statute-barred.

2. Whether having regard to the combined provisions of Section 177 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Tribunal was right when it held that the 1st Respondent proved that its candidates were validly nominated but unlawfully excluded from the Bayelsa State Governorship election held on 16th November, 2019.

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3. Whether the Tribunal was right when it granted reliefs that inure in favour of person who voluntarily withdrew from the petition.

Appellants Submissions
On issue 1, Counsel to the Appellant argued that disqualification nomination, substitution and sponsorship of candidates for election are regarded as pre-election matters. He cited Watharda v. Ularamu (2015) 3 NWLR (Pt. 1446) 309 and other cases in support. Counsel stated that by Section 285 (9) of the Constitution, as amended, a pre-election matter must be filed within 14 days from the date of the event, decision or action complained of. He cited Musa v. Umar (2020) 11 NWLR (Pt.1735) 213 and other cases in support. Counsel stated that the cause of action arose on September 27, 2019 while the petitioner filed his petition on February 26, 2020. As such, the petition was statute barred.

On issue 2, counsel for the Appellant submitted that the 1st respondent had the burden to prove valid nomination. He relied on Section 133 (1) of the Evidence Act, 2011 and Plateau State of Nigeria v. A. – G., Fed. (2006) 3 NWLR (Pt. 967) 354.

Going further, Counsel stated that the name of the second Deputy Governorship candidate was submitted outside the time prescribed by the Appellant and as such was not a valid nomination and that when the nomination is invalid, no substitution can be made. He cited NDP v. INEC (2012) 14 NWLR (Pt. 1319) 176; FJP v. INEC (2019) LPELR- 49370 (CA); Action Alliance v. INEC (2019) LPELR-49364 (CA) and Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60 in support.

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Counsel also stated that there was no result of the election as the purported results were unsigned computer-generated evidence contrary to Section 84 of the Evidence Act, 2011. He cited Maku v. Almakura (2016) 5 NWLR (Pt.1505) 201. Counsel concluded that there was no prayer to restore the first Deputy Governorship candidate and to declare the substitution of the second candidate as unlawful and the tribunal wrongly granted them. Citing Nwaogu v. Atuma (2013) LPELR-20667 (SC).

On issue 3, Counsel argued that since the names and prayers that inure to the 1st Respondent’s candidates had been struck out of the petition on 29th April, 2020, the Tribunal was wrong in law to grant the prayer 3 that was beneficial to them.

Respondents Submissions
Responding to the arguments of the appellant, counsel to the respondent stated that by Section 285 (5) (a) of the Constitution, as amended, a petition should be filed within 21 days of declaration of result. He relied on Odusote v. Odusote (2013) All FWLR (Pt. 668) 867. Counselstated that the cause of action arose after the election result and that it was the declaration not the election itself. Counsel insisted that the cause of action arose on February 14, 2020 after the last declaration of result of the election by INEC and was not statute-barred.

Counsel further stated that the issue of qualification of candidate is both a pre-election and post-election matter, which can be litigated before regular Courts and the Tribunal despite Section 285 (9) and (14) of the Constitution, as amended. He relied on Fayemi v. Oni (2020) 8 NWLR (Pt. 1726) 222. He then stated, in the alternative, that even if the cause of action was a pre-election matter, the Tribunal could try the petition under Section 138 (1) (d) of the Electoral Act. He cited Gwede v. INEC (2014) 18 NWLR (Pt. 1436) 56, Dangana v. Usman (2013) 6 NWLR (Pt. 1349) 50. 

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Concluding arguments, counsel stated that the dismissal of the earlier petition was not a bar to the present petition because its subject-matter became null and void as the declaration it was based on was nullified by the Supreme Court decision of February 13, 2020. He relied on INEC v. Nyako (2011) 12 NWLR (Pt. 1262) 439.

On issue 2, Counsel stated that nomination was different from qualification and that the latter was irrelevant in considering the former. He argued that the Appellant had no right to challenge qualification of the candidates without filing a cross-petition. He cited Dickson v. Sylva (2017) 10 NWLR (Pt.1573) 299. Counsel further arguedthat since the Appellant did not participate in the 1st Respondent’s primary election, it had no vires to challenge the nomination. He relied on Tarzoor v. Ioraer (2016) 3 NWLR (Pt. 1500) 463. 

Counsel stated that the 1stRespondent had the locus standi to maintain the petition, citing Section 138 (1) of the Electoral Act which used the word “or”. He stated that Section 177 of the Constitution, as amended, does not apply to a political party as after conduct of a primary election it has met valid nomination. Citing Sections 31 and 87 of the Electoral Act and Agbedo v. Adenomo (2018) 13 NWLR (Pt. 1636) 264.

Counsel concluded by stating that the Tribunal never made a case for the 1st Respondent’s first nomination of Deputy Governorship candidate as its opinion was obiter. Relying on Gallaher Ltd v. British America Tobacco (Nig.) Ltd. (2014) LPELR- 24333 (CA) andAjar v. Ayip (2016) LPELR- 41200 (CA). On issue 3, Counsel submitted that the 1st Respondent’s candidates’ withdrawal from the petition did not mean the withdrawal of their candidature. Citing Section 35 of the Electoral Act and Wada v. Bello (2016) 17 NWLR (Pt. 1542) 374.

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Resolution Of The Issues
On the 1st issue, the Court held that disqualification of candidate on the basis of underageis a pre-election matter by virtue of Section 285 (14)(c) of the 1999 Constitution (as amended). The Court then went ahead to determine the next question of whether the Petition was statute barred. The Court examined the petition of the Petitioner, which revealed that the cause of action accrued on September 27, 2019 but the petition was filed on February 26, 2020, which was outside the 14 days from the date of the accrual of the cause of action as stipulated by Section 285 of the 1999 Constitution (as amended). As such, the petition was statute barred.

Further on issue 1, the Court held that since the case is a pre-election dispute, the Tribunal was not the competent forum for its determination. Rather, the Federal High Court and High Court of a State or FCT are the Courts vested with jurisdiction to try a pre-election matter vide Section 31 (5) of the Electoral Act. See PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525 and Ekagbara v. Ikpeazu (2016) 4 NWLR (Pt. 1503) 411. That has the Tribunal lacked jurisdiction to hear the petition, its judgment delivered in favour of the 1st Respondent was null and void. Issue 1 was therefore resolved in favour of the Appellant.

On issue 2, the Court stated that in order to prove unlawful exclusion after valid nomination, a petitioner must show the following:
(i) That he was validly nominated by his political party;
(ii) That an election was conducted; (iii) That a winner was declared; and
(iv) That his name was not included in the list of the constants. Citing Abubakar v. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1, at pages 94 and 95.

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Going further, the Court held that even though nomination and qualification are mutually exclusive and not coterminous, Section 31 (2) of the Electoral Act states that “the list or information submitted by each candidate shall be accompanied by an Affidavit sworn to by the candidate at the Federal High Court, High Court of a State or Federal Capital Territory, indicating that he has fulfilledall the constitutional requirements for election into that office.” Thus, for nomination to be valid, the candidate must show that he is qualified to be so nominated. A candidate that is disrobed of the necessary qualification cannot claim to be validly nominated to contest for an elective office. The Court then considered the records which revealed vide documentary and oral evidence that the first Deputy Governorship candidate, Mr. David Peter Esinkuma was below the required age of 35 years as decreed in Section 177 (b) of the Constitution as amended. He was thus not validly nominated. His subsequent substitution with Miss Inowei Janet was ineffectual in law as only valid nomination can attract substitution. See Lau v. PDP (2018) 4 NWLR (Pt. 1608) 60. In addition, the Court held that the invalidity of the nomination of the Deputy Governorship position also invalidated the nomination of the Gubernatorial candidate.

By reason of the above, the Court held that the 1st respondent’s claim of unlawful exclusion could not stand as there was no proof of valid nomination. Issue 2 was therefore resolved in favour of the appellant.

On issue 3, the Court held that the Tribunal having struck out the 1st Respondent and its candidates from the earlier petition, it ceased to be a claim pending before it. That the grant of the relief ordering the INEC to include the name and logo of the 1st Respondent together with the names of its candidates in the fresh election, was a gratuitous award. Also, the Tribunal by granting the relief, which it had earlier struck out constituted itself into an appellate Court which is offensive to law. See Famu v. Kassim (2013) 7 NWLR (Pt. 1352) 124 and Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499. The Court therefore resolved issue 3 in favour of the appellant.

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Held
The Court resolved all issues in favour of the Appellant and allowed the appeal. The Court set aside the decision of the Tribunal and upheld the declaration of the 3rd Respondent as the Governor of Bayelsa State made by the Appellant on February 14, 2020.
Appearances:
IBRAHIM K. BAWA, SAN, with him, USMAN O. SULE, SAN,
O.O. BABALOLA, ESQ., DLS, INEC, S.O. IBRAHIM, ESQ., DDLS, INEC,
SAFARA YUSUFF, ESQ. and ADAMS S. YAKUBU, ESQ. For Appellant(s)

KEHINDE OGUNWUMIJU, SAN, with him,
TUNDE BABALOLA, ESQ., STEPHEN ANICHEBE, ESQ.,
ADEMOLA ABIMBOLA, ESQ., TUNDE ADEJUMO, ESQ.
and JUDE UGWUANYI, ESQ. – for 1st Respondent

EMMANUEL ENOIDEM, ESQ., with him,
I.M. BROWN, ESQ., A. FANOKUN, ESQ., O.J. OTOKPA, ESQ.
and N.N. ASOBINUANWU, ESQ. – for 2nd Respondent

CHIEF CHRIS UCHE, SAN, with him,
CHIEF GORDY UCHE, SAN, OLAKUNLE LAWAL ESQ.,
FRANCIS NSIEGBUNAM, ESQ. and ABDULJALIL MUSA, ESQ. – for 3rd Respondent

Compiled by LawPavilion.

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