Termination of employment is not a ground for disqualification of a candidate under 1999 Constitution
IN THE SUPREME COURT OF NIGERIA
HOLDEN AT ABUJA
ON FRIDAY, 20TH JULY, 2018
BEFORE THEIR LORDSHIPS:
WALTER SAMUEL NKANU ONNOGHEN (CJN)
MUSA DATTIJO MUHAMMAD (J.S.C)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN (J.S.C)
CHIMA CENTUS NWEZE (J.S.C)
EJEMBI EKO (J.S.C)
ENGR. GEORGE T.A. NDUUL – APPELLANT(S)
1. BARR. BENJAMIN WAYO – RESPONDENT(S)
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
Suit No: SC.1093/2017
LEAD JUDGMENT DELIVERED BY HONOURABLE KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.
facts of the case
The appellant and the 1st respondent contested for the National Assembly primary election conducted by the All Progressive Congress (APC) to select its candidate for the House of Representatives for the Kwande/Ushongo Federal Constituency of Benue State in the general election slated for 14th February 2015.
Despite the allegations levelled against the 1st Respondent he was allowed to contest for the primaries where he won and his name was forwarded as the party’s candidate for the election while the appellant came second. Dissatisfied, the appellant appealed to the 2nd respondent’s Appeal Committee for the National Assembly Primary Elections for Benue State against the 1st respondent’s participation in the primary election and his appeal was successful. The committee recommended that he be considered as the party’s candidate. Notwithstanding these facts, the recommendation was not followed. The appellant brought an action before the Federal High Court, Makurdi Division seeking the determination of certain questions and subsequent reliefs. The 1st and 2nd respondents also filed a Preliminary Objection challenging the Court’s jurisdiction to entertain the suit.
In a considered judgment delivered by the trial Court, the preliminary objection was overruled. The Court resolved all the questions in the substantive suit against the appellant and dismissed the suit.
The appellant dissatisfied with the decision of the trial Court appealed to the Court of Appeal, while the 1st and 2nd respondents cross appealed against the decision overruling their objection to the Court’s jurisdiction. The appeal and cross appeal was dismissed by the Court of Appeal. The Court of Appeal affirmed the dismissal of the appellant’s suit by the Federal High Court, Makurdi Division in a judgment delivered on 10th December 2015.Aggrieved by the decision of the Court of Appeal, the Appellant filed this Appeal.
ISSUES FOR DETERMINATION
The issues distilled by the 1st Respondent for the determination of the appeal was adopted by the Court and are as follows:
1. In view of the extant provisions of Section 240 of the 1999 Constitution of the Federal Republic of Nigeria, Section 15 of the Court of Appeal Act (2010 as amended) and Order 4 Rules 3 and 4 of the Court of Appeal Rules 2016, can it be said that the lower Court erred when it considered before it the new issue of the breach of fair hearing of the 1st respondent?
2. Whether the Learned Justices of the Court Appeal were not right when they rejected the contention of the appellant that, he was by the decision of the NEC of the 2nd respondent issued with INEC forms as the 2nd respondent candidate for the House of Representatives election for Kwande/Ushongo Federal Constituency but instead upheld the judgment of the trial Court that “The 1st respondent is a competent person to contest election. And having scored the highest number of votes casts at the primaries is eligible to have his name sent to the 3rd respondent as the candidate for the 2nd respondent?
3. Whether or not the Court of Appeal was right when it held that Section 31(5) & (6) of the Electoral Act, 2010 (as amended) can only be invoked against a candidate who gives false information in the relevant affidavit or a document submitted by him and the same relates to any of the qualifying or disqualifying factors in Section 65(1) and 66 of the Constitution of Nigeria, 1999 (as amended) and that the appellant failed to prove the criminal allegation of forgery and perjury against the 1st respondent?
ARGUMENTS ON ISSUE 1
The learned counsel for the Appellant submits that the jurisdiction of the Court of Appeal is restricted to appeals from the Courts mentioned in Section 240 of the Constitution, as amended, and that the Court ought to have declined jurisdiction to entertain the fresh issue. On the nature of the Court of Appeal’s jurisdiction, he referred to: Star Paper Mill Ltd. & Anor v. Adetunji & Ors (2009) 13 NWLR (Pt. 1159) 647: (2009) LPELR – 3113 (SC).
He submitted further that the fresh issue was not tied to any of the grounds of appeal or cross appeal nor a respondent’s notice and ought to have been struck out. He referred to Garba & Ors v. The State (2000) LPELR – 1306 (SC) 6 C – E.
It was further submitted that the appellant’s right to fair hearing was breached because the lower Court failed to consider the submissions canvassed in his brief in reaction to the fresh issue raised by the 1st respondent.
In response to the appellant’s submission, the learned counsel for the 1st respondent submitted that it was in recognition of the provision of Section 15 of the Court of Appeal Act 2010 and Section 240 of the Constitution, that the 1st respondent filed an application seeking leave to raise the issue of the breach of his fundamental right for the first time in the Court of Appeal. He noted that the appellant did not oppose the application. He submitted that the fresh issue was properly raised having regard to the provisions of Section 15 of the Court of Appeal Act and Order 4 Rules 3 – 4 of the Court of Appeal Rules 2016.
ON ISSUE 2
The Learned counsel for the appellant contends that in affirming the judgment of the trial Court on the 1st respondent’s qualification to participate in the conducted primary election, the lower Court considered extraneous matters and disregarded the overwhelming credible and weighty evidence proffered by the appellant. He went ahead to say that the judgment of the Court was perverse and should not be allowed to stand by the Court.
He submitted that the 2nd respondent was bound to comply strictly with the provisions of its guidelines in the conduct of its primary elections. He referred to Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (PT. 1275) 30 at 60; CPC v. LADO (2011) 14 NWLR (PT. 1266) 40 at 91 – 92 D-G. Learned counsel for the 1st respondent submitted that by virtue of Section 133(1) and (2) of the Evidence Act, the initial burden of proving the allegations made against the 1st respondent was on the appellant. On the alleged failure to pay the nomination fee, learned counsel submitted that the burden was on the appellant to prove same.
ON ISSUE 3
It was contended that the 1st respondent falsified his termination letter. Learned counsel for the 1st respondent, submitted that the appellant made allegations of forgery and perjury, which he was bound to prove beyond reasonable doubt, as required by Section 135(1) and (2) of the Evidence Act 2011. He also urged the Court to uphold the finding of the lower Court that even if the 1st respondent was found to have given false information, he would not be liable to be disqualified because termination of employment is not a ground for disqualification under the 1999 Constitution. He referred to the recent decision of this Court in Joe Odey Agi v. PDP & Ors at 455 – 456 F – A. It should be noted that learned counsel for the 2nd and 3rd respondents made similar submissions as those made on behalf of the 1st respondent.
ON ISSUE 1
In respect of this issue the Court held that the appeal before the lower Court arose from the decision of the Federal High Court, Makurdi Division. It therefore had jurisdiction to entertain it. Section 15 of the Court of Appeal Act, Cap. C36 Laws of the Federation of Nigeria (LFN) 2004, as amended, confers general powers on Court of Appeal in the exercise of its appellate jurisdiction.
The Court went further to say that having considered the argument of learned counsel for the appellant that his submissions in opposition to the fresh issue raised were not considered by the lower Court the appellant did not suffer any miscarriage of justice.
ON ISSUE 2
The Court was of the view that the burden was on the appellant to satisfy the Court that he was entitled to those reliefs, notwithstanding any perceived weakness of the defence.The Court further held that the selection and nomination of candidates for elective office is the sole preserve of the political parties and the Courts would not usually interfere in their domestic affairs. See: P.D.P. v. Sylva (2012) 13 NWLR (Pt.1315) 85 at 146 A – E. However, as rightly submitted by learned counsel for the appellant and as reiterated by this Court in the recent case of Mato v. Hember (supra), political parties must adhere strictly to the provisions of their Constitutions and electoral guidelines in the process.
ON ISSUE 3
In respect of this issue the Court was of the opinion that the two lower Courts were right when they held that even if it was established that the 1st respondent gave false information (not so found) it would not be a ground for disqualification, as termination of employment is not a disqualifying factor under Section 65(1) and 66 of the Constitution.
The Court held it was not persuaded that the concurring decisions of the two lower Courts are perverse. The reasoning and conclusions are fully in accord with the evidence on record. All the three issues for determination in this appeal were resolved in favour of the Respondent and against the Appellant. Consequently, the appeal was said to be devoid of any merit and dismissed. The Judgment of the Court of Appeal delivered on 29th November 2017, was affirmed.
Compiled by: lawpavilion
For Appellant(s): Mathew Burkaa Esq. with P.D. Adi Esq., A.T. Hassan Esq. and I.D. Ahmed Esq.;
For Respondent(s): G.T. Yongo Esq. for 1st Respondent/Applicant,
S.A. Akpehe Esq. for 2nd Respondent/Applicant.
Abdullahi Haruna Esq. with U.D. Suleh Esq., G.O. Adili Esq., and Abdulrazak Alfa Esq for 3rd Respondent
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