APP v. OBASEKI & ORS
(2021)LCN/15160(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Wednesday, May 26, 2021
CA/B/EPT/GOV/02/2021
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
ACTION PEOPLES PARTY (APP) APPELANT(S)
And
1. GODWIN OBASEKI 2. PEOPLES DEMOCRATIC PARTY (PDP) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the decision of the Edo State Governorship Election Petition Tribunal, delivered on 29/3/2021, whereof the Honourable Tribunal struck out and/or dismissed the Petition, for being incompetent or not being proved. Appellant herein was the Petitioner, being a Political Party, complaining against the election and return of the 1st Respondent (who was sponsored by the 2nd Respondent) at the election, as pronounced by the 3rd Respondent, which conducted the election.
At the Tribunal, Appellant, as Petitioner, had prayed, as follows:
(1) That it may be determined that the Edo State Governorship Election held on 19th September, 2020 be nullified by reason of the unlawful exclusion of the validly nominated candidates of the Petitioner from the election.
(2) That it may be determined that a fresh Governorship election be conducted for the office of Governor of Edo State, wherein the validly nominated candidates of the Petitioner would be included or represented on the relevant result sheet and on all other documents for the said election.
The Respondents had filed
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preliminary objections to the Petition, challenging the competence of the Petition. The 1st Respondent’s preliminary objection, dated 28/11/2020, was to the effect that the Tribunal lacked jurisdiction to hear the Petition, as constituted, and asked for the same to be dismissed, in limine. In the alternative, the 1st Respondent prayed that Paragraphs 11, 12, 13, 14, 15, 16, 21 and 31 of the Petition be struck out, as they related to purely pre-election matter.
The grounds for the 1st Respondent’s preliminary objection, were:
(i) By the provision of Paragraph 4(1) of the 1st Schedule to the Electoral Act, 2010 (As Amended), the Petitioner is required to state the grounds or grounds on which the Petition is based, in the language of Section 138(1) of the Electoral Act, 2010 (As Amended);
(ii) The sole ground of the Petition or Paragraph 8 is not only argumentative, but was not worded in the language of Section 138(1) of the Electoral Act, 2010 (As Amended) …
(iii) …
(iv) …
(v) …
(vi) …
(vii) …
(viii) …
(ix) …
(x) …
(xi) That Paragraphs
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11, 12, 13, 14, 15, 16, 21 and 31 of the Petition relate purely to, or raised a pre-election matter and relate to the alleged right of one Kenneth Udueze Esq., who is not a party to this Petition.
(xii) That the Honorable Tribunal lacks the jurisdiction to hear and determine this Petition as it is presently constituted.
The 1st Respondent’s preliminary objection was supported by affidavit and an address. The Petitioner too, filed a Counter affidavit and address, to contest the objection. After hearing the preliminary objection and considering the addresses of Counsel, therein, the Tribunal held:
“On whether the Petitioner has the locus standi to present this Petition, we find that the Petitioner, being a political party, has the locus standi to institute the petition. The status of the Petition is what we are expected to determine in this application. We therefore hold that the Petitioner has the locus standi…
On whether the substance of the Petition is not a pre-election matter, which this Honourable Tribunal lacks jurisdiction to entertain, the grounds of this Petition fall squarely within the ambit of pre-election matters. From what
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the Courts have defined as pre-election matters, the grounds of this Petition are squarely founded on events, issues and matter that occurred before the actual holding of the election and that is why the Petitioner filed a Suit at the Federal High Court, Abuja; we therefore hold that this Petition falls within the ambit of pre-election matter.
On whether the sole ground of this instant Petition is not alien, totally strange and unknown to the case, and ambiguous grounds set out in Section 138(1) of the Electoral Act, 2010 (As Amended).
That Section provides:
138(1): an election may be questioned on any of the following grounds, that is to say:
(a) That a person whose election is questioned was at the time of the election not qualified to contest the election.
(b) That the election was invalid by reason of corrupt practices or non-compliance with provisions of the Act.
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election. These ground (sic) can be determined by evidence
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and not at an interlocutory stage as in this application. We so hold.
On whether Paragraphs 11, 12, 13, 14, 15, 16, 21 and 31 of the Petition, which relates purely to or raised a pre-election matter, are not liable to be struck out, it is our view that all the Paragraphs stated above touch on pre-election matter and ought to be struck out. We so hold.” (See Pages 638 to 640 of the Records of Appeal).
The 3rd Respondent had also raised a similar preliminary objection, seeking the striking out/dismissal of the Petition on similar grounds, as prayed by the 1st Respondent. The 3rd Respondent also prayed that the Petition be struck out/dismissed, because it had no cognizable cause of action, and that the petition related to pre-election matter. It sought the striking out of Paragraphs 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, (19 sic), (20 sic), 21, 22, 23, 25, 26, 28, 29, 30, 33 and 33 of the Petition, because the Tribunal lacked the competence to inquire into them, being pre-election matters, caught by Section 285(9) of the 1999 Constitution (as amended); it prayed that the said paragraphs of the Petition be struck out.
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The 3rd Respondent had also sought for the striking out/dismissal of the Petition, as the sole ground of the Petition was unknown to the Electoral Act, 2010 (as Amended), and in breach of the mandatory provision of Section 138(1) (d) of the Electoral Act, 2010 (As Amended).
The Tribunal also found merit in 3rd Respondent’s Application (objection) and struck out the Petition. See Pages 649 to 650 of the Records, where the Tribunal said:
“We have considered the argument proffered by learned Counsel in this Application. We find merit in the 3rd Respondent’s objection. Accordingly, we hereby uphold the objection and strike out the Petition.”
But after the above ruling, the Tribunal, strangely, said:
“We shall now proceed to consider the Petition on merit.” (Page 650 of the Records).
At the end of, what I consider, a futile exercise, the Tribunal still held against the Petitioner and dismissed the Petition, for not being proved. (See Page 69 of the judgment).
I do not think it was proper for the Honourable Tribunal to proceed to considering the Petition on the merit, after having held that the Petition was incompetent and had struck it out. In my
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opinion, there was nothing left to be considered on the merit again after striking out the Petition. See Okonjo Vs Okonjo & Ors (2020) LPELR – 51817 CA; and Onwuneme & Anor vs Onuzuruike & Ors (2019) LPELR – 48419 CA, where it was held:
“A Court cannot dismiss the same case twice or in piece-meal, because, having made a formal order of dismissal of the case, it became functus officio to entertain it again, to pronounce on the same case; that position holds, except there is an order of appellate Court, i.e., if the first order was appealed and the appellate Court ordered the Lower Court to take back the case and hear… ”
This Appeal is against the above decision, delivered on 29/3/2021, as per the Notice of Appeal, filed on 16/4/2021 (Pages 685 — 701 of the Records) disclosing Seven (7) Grounds of Appeal.
Appellant filed its brief of arguments on 2/5/2021 and distilled 6 (Six) Issues for the determination of the Appeal, as follows:
(1) Whether the Lower Tribunal was right when it held that the Appellant’s Petition falls within the ambit of a pre-election matter (Ground 1)
(2) Whether or not the Lower Tribunal was right when
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it struck out Paragraphs 11, 12, 13, 14, 15, 16, 21 and 31 of the Petition. (Ground 2)
(3) Whether or not the Lower Tribunal was right when it upheld the 3rd Respondent’s preliminary objection and struck out the Petition, without giving any reason for its decision (Ground 3).
(4) Whether the decision of the Lower Tribunal to the effect that it lacked the jurisdiction to entertain the Appellant’s Petition because the Tribunal is not the venue for contesting that information provided by candidate in an affidavit or document, is right and applicable to the case of the Appellant (Ground 4).
(5) Whether the Lower Tribunal was not wrong in law when it held that the absence of direct evidence from Amos Osalumese Areleogbe and Afolabi Alfred Sarki-Ogah was fatal to the Appellant’s case (Ground 5).
(6) Whether having (regard) to the totality of the pleading and evidence adduced by the Appellant, the Lower Tribunal was right when it held that the Appellant did not prove its case? (Grounds 6 and 7)
I think the above issues are proliferate on the same main and relevant issue for the determination of this Appeal, which is:
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“Whether the Tribunal was right to hold that the Petition related to pre-election matter and so struck out paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 29, 30, 31, 33 of the Petition, for incompetence (for relating to pre-election matter), and finally, dismissed the Petition.”
Appellant’s Counsel argued that the Tribunal was wrong to hold that the Petition fell within the ambit of pre-election matter; he said that facts in suit No. FHC/C/ABJ/CS/858/2020, between Action Peoples Party Vs Independent National Electoral Commission, pending at Federal High Court, Abuja (which the Tribunal referred to as evidence of pending pre-election matter, filed before the holding of the elections, complained of) can also be facts necessary to prove unlawful exclusion, as they flow from the same transaction. He relied on Section 138(1) (d) of the Electoral Act, which he said, used the words “Validly nominated”, and argued that the facts necessary to prove valid nomination (which are for all intent and purposes Pre-Election facts) are relevant and indeed crucial to the proof of unlawful exclusion, which is a post-election matter.
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Counsel said that neither the Tribunal, nor any of the Respondents, denied the existence of the Suit No. FHC/ABJ/CS/858/2020, in which Appellant was challenging the refusal of the 3rd Respondent to accept the withdrawal of the erstwhile candidates of Appellant and their substitution with new candidates; he argued that valid nomination (pre-election matter) and unlawful exclusion (post-election matter) go hand in hand like Siamese twins, by virtue of Section 138(1) (d) of the Electoral Act; that Section 285 (14) of the 1999 Constitution (as Amended), which defines what pre-election matter is, does not state that a political party, challenging its unlawful exclusion in an election is one of the definitions of what a pre-election matter is.
Counsel argued said that perusal of this provision will reveal that the complaint, envisaged under this provision, is disqualification and not unlawful exclusion; that this is why the words “unlawful exclusion” do not appear anywhere in Section 285(14) of the 1999 Constitution. He said that a complaint of unlawful exclusion at the polls is not one of the matters defined as a pre-election matter in this provision. He said that
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unlawful exclusion is different from unlawful disqualification; that the Petition was on unlawful exclusion, not unlawful disqualification.
Counsel argued that Appellant validly substituted its candidates not later than 45 days to the election. But that the 3rd Respondent proceeded to refuse the substitution and to exclude the said candidates from the election conducted on 19/09/2020; he said that the Petition was founded on the basis of the said unlawful exclusion. He referred us to the pleadings of Appellant in Paragraphs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 31, 32 and 33 of the Petition and relied on Section 138(1) (d) of the Electoral Act.
Counsel argued and admitted that the refusal of 3rd Respondent to accept the substitution of its candidates led to Appellant’s Suit No. FHC/ABJ/CS/858/2020, filed on 24/7/2020; that while that Suit was pending, 3rd Respondent proceeding to exclude Appellant’s candidates from the election of 19/9/2020. Counsel argued that as per the sole ground of the Petition, “the entirety of the Edo State Governorship Election, held on 19th September, 2020, is invalid, null and void, by reason of the unlawful
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exclusion of the validly nominated candidates of the Petitioner from the said election.”
He relied on authorities, on unlawful exclusion, including ACN & Anor vs Peter & Ors (2011) LPELR -13402 CA. He submitted that the case of DIRI VS ANDP & ORS (2020) LPELR —50947 (CA), was inapplicable to this case at hand, as it is not on all fours with this case.
Counsel argued that the cause of action (unlawful exclusion of Appellant’s candidates) arose on 20/9/2020, when the 3rd Respondent made the declaration of result of the election, conducted on 19/9/2020; and so the Petition was filed, after the declaration of the said result. Counsel referred to Section 285(14) of the Constitution on Pre-election matter and said that the Section did not apply to this Petition.
On whether the Tribunal was right when it struck out paragraphs 11, 12, 13, 14, 15, 16, 21 and 31 of the Petition, Counsel answered in the negative and argued that by striking out those Paragraphs of the Petition, Appellant was foreclosed from proving the Petition.
On the issue of the Tribunal not having jurisdiction to entertain the Petition for being a pre-election
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matter, for which Appellant was pursuing a pending pre-election cause in the Federal High Court – Suit No. FHC/ABJ/CS/858/2020, pursuant to Section 31(5) of the Electoral Act, Counsel argued that the Tribunal was wrong to rely on Section 31(5) of the Electoral Act, to decline jurisdiction to hear and determine the Petition, on the ground that the Tribunal was not the venue for contesting that the information provided by a candidate was false; Counsel said that that was a great error in law, which occasioned miscarriage of justice.
Counsel argued that from the entire gamut of the pleadings and evidence adduced by Appellant, it was not their case that the information provided by the 1st Respondent or any other candidate, for that matter, in their affidavit or document was false, within the contemplation of Section 31(5) of the Electoral Act; that there was simply no mention of that point in any aspect of the Petition, nor in the replies to the Petition; he said that the trial Tribunal veered completely off course and reached a strange conclusion against the Appellant.
He urged us to resolve the Issues for the Appellant and allow the Appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The 1st Respondent’s brief was argued by Ken Mozia Esq., SAN, and the 2nd Respondent’s Brief was argued by Esther Olatunji (Miss) of Emeka Etiaba S.A.N, Etiaba & Co. The briefs were similar as per the Issues distilled for determination.
The 1st Respondent’s Brief was filed on 11/5/2021, wherein the learned Senior Counsel, Ken E. Mozia, SAN, distilled two Issues for determination, namely:
(1) Whether the Tribunal was in error to hold that the ground of the Petition and the facts in support fell within the definition of pre-election matter, which warranted the striking out of Paragraphs 11, 12, 13, 14, 15, 16, 21 and 31 of the Petition and the Petition itself, as being outside the Jurisdiction of the Election Tribunal. (Grounds 1, 2, 3 and 4)
(2) Whether the Tribunal was right that by the pleading and evidence, the Appellant failed to prove that the Party and its lawfully nominated candidates were unlawfully excluded from the Edo State Governorship Election held on 19th September, 2020. (Grounds 5, 6 and 7)
Counsel answered the two Issues in the affirmative, and said that Appellant’s Petition was founded on pre-election complaints.
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He relied on Sections 138(1) (d) of the Electoral Act (2010), as amended, and Sections 285(14) (c) and 285 (9) of the 1999 Constitution, as amended. He also relied on the case of APP vs INEC (2019) LPELR – 48465 CA; ONI vs FAYEMI & Ors (2019) LPELR – 49299 SC (among other cases).
He asserted that, having rightly found that the aforesaid Paragraphs of the Petition were on pre-election matters, the Tribunal cannot be faulted, for striking out the said paragraphs 11, 12, 13, 14, 15, 16, 21 and 31 of the Petition.
Counsel made further arguments on the Issue 2, which touched on the determination of the Petition on the merits, to the effect that Appellant had no candidates at the election, having not replaced its candidates who withdrew from the election, within the prescribed time allowed and which was the subject matter of the suit No. FHC/ABJ/CS/858/2020, pending at the Federal High Court, Abuja, before the governorship election on 19/9/2020.
The 2nd Respondent’s Issues for the determination of the Appeal are three, namely:
(1) Whether the Tribunal was not right when it held that the Appellant’s Petition falls within the ambit of a
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pre-election matter. (Ground 1)
(2) Whether the Tribunal was not right when it declined jurisdiction, upheld the 3rd Respondent’s Preliminary Objection, struck out Paragraphs 11, 12, 13, 14, 15, 16, 21 and 31 of the Petition. (Grounds 3, 2 and 4)
(3) Whether the Tribunal was not right when it found that Appellant’s failure to call Amos Olalumese Areleogbe and Afolabi Alfred Sarki-Ogah was fatal to its case and finally held that the totality of the pleadings and evidence adduced by the Appellant did not prove its case. (Grounds 5, 6 and 7)
The 2nd Respondent answered the posers in the affirmative. On Issue 1, 2nd Respondent referred us to paragraph 21 of the Petition, where Appellant averred:
“Your Petitioner shall at the hearing of this Petition lead evidence to show the 3rd Respondent deliberately failed, refused and/or neglected to accept the names of Abhulimen Osadalor Prede and Erhomenya Ehigiator Collins as the Governorship and Deputy Governorship Candidates of the Petitioner or accord them the rights and privileges appertaining to their lawful nomination at the said election.” (See Page 2 of the Records of Appeal)
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Counsel said that was clearly a pre-election issue, which Appellant sought the Federal High Court to resolve in Suit No. FHC/ABJ/CS/858/2020: between Action People’s Party Vs Independent National Electoral Commission (INEC), pending in Court, even before the election was held.
Counsel argued that this Petition was therefore an abuse of the Court process, as the Suit No. FHC/ABJ/CS/858/2020 was still pending, to be determined on the same complaint. He relied on the case of Okafor Vs A.G. Anambra State (1991) 6 NWLR (Pt.200) 659; Pharmatex Ind. Ltd vs Ojo (1994) 7 NWLR (Pt.359) 751 (among others).
Counsel also relied on the recent case of Duoye Diri Vs Advanced Nigeria Democratic Party & Ors (2020) LPELR — 50947 CA, where my lord, Ogbuinya J.C.A., found on the case of Abubakar vs INEC (2020) 12 NWLR (Pt.1737) 37 at 161, where the Supreme Court held:
“… disqualification of candidate on grounds of false information in his Form CF001 is pre-election matter by dint of Section 285(14) (c) of the Constitution.” Per Eko J.S.C.
On the Issue of jurisdiction, Counsel said the Tribunal was right to strike out paragraphs 11 to 16, 21 and
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31 of the Petition, as they established that the matter was founded on pre-election complaints. Counsel relied on the case of Odedo Vs INEC (2008) 17 NWLR (Pt.1117) 554, to say that Section 285(1) (a) of the Constitution does not accommodate pre-election matters.
And on Issue 3, which touched on the substantive case, Counsel said the Petitioner had sought declaratory reliefs, which in line with the law, needed to succeed on the strength of its own case, not on the weakness of the defence; that Petitioner had presented two set of cases at the Tribunal:
(1) One bordering on INEC’s refusal to accept its substituted candidates for the election (Paragraphs 13, 14, 15, 18, 21, 22, 28, 29, 31, 32 and 33 of the Petition).
(2) Another bordering on allegation of unlawful exclusion of its candidates at the election (Paragraphs 15, 16, 20, (sic) 19, 20, 24, 25, 27, 28, 29, 31, 32 and 33 of the Petition).
Counsel said that the Appellant could not even resolve the inconsistency and contradiction in the Petition – which showed that it had no candidates for the election, but complained of unlawful exclusion.
Counsel relied on the case of
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Daniel Bassil & Anor Vs Chief Lasisi Fajebe & Anor (2001) LPELR – 757 (SC), wherein it was held:
“Parties are bound by their pleadings and will not be permitted to set up a case different from what they have pleaded. Parties are permitted to make inconsistent averments. However, it is not the law that parties are permitted to make inconsistent assertions on the same question of fact or adduce inconsistent evidence over one and the same issue. A party who adduces inconsistent evidence over one and the same issue, damages his own case, unless he can reconcile the apparent inconsistency.” Per Ayoola, J.S.C.
Counsel said that Appellant made inconsistent cases on the same facts; he said that the Petitioner’s substitution having been rejected by the 3rd Respondent, everything that happened was a consequence of the said rejection. But that this Petition paints a different picture of a sudden act of sabotage by 3rd Respondent in not fielding its replacement candidates at the election, when that was being contested in FHC/ABJ/CS/858/2020.
He urged us to resolve the Issues against the Appellant.
The 3rd Respondent’s arguments agreed with the
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position of the 1st and 2nd Respondents. Its Counsel, Dr. Alex Izinyon, SAN, said that the Tribunal was right to say that the Petition related to a pre-election matter, and it was right to strike out Paragraphs 11, 12, 13, 14, 15, 16, 21 and 31 of Appellant’s Petition, on the ground that they related to pre-election matters. He relied on Hassan Vs Aliyu (2010) 17 NWLR (Pt. 1223) 547 at 604:
“…substitution and nomination being pre-election matters, the candidate must approach the competent Court to seek for the enforcement of his rights before the real election takes place…”
See also Salim vs CPC (2013) 5 NWLR (Pt.1348) 501 at 524 – 525:
“In conclusion, it has to be stated that the issue of disqualification, nomination, substitution and sponsorship of candidates for an election precedes election and are therefore pre-election matters…”
Counsel also relied on the case of DIRI VS ANDP & ORS (2020) LPELR – 50947 (CA), where this Court said:
“…Since the first respondent’s cause of action orbits around pre-election dispute, the tribunal was not the forum competent for its
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determination. The Court’s that are equipped/clothed with the requisite jurisdiction to entertain it, pursuant to Section 31(5) of the Electoral Act, are the regular Courts, videlict: The Federal High Court, High Court of a State or FCT. See PDP vs INEC (2014) 17 NWLR (Pt.1437) 525; Ekagbara vs Ikpeazu (2016) 4 NWLR (Pt.1503) 411; Al-Hassan Vs Ishaku (2016) 10 NWLR (Pt.1520) 230; Garba vs Mohammed (2016) 16 NWLR (Pt.1537) 114; Ogah vs Ikpeazu (2017) 17 NWLR (Pt.1594) 299; Agi vs PDP (2017) 17 NWLR (Pt.1595) 386.” Per Ogbuinya, J.C.A.
Counsel said the above decision was confirmed by the Supreme Court in ANDP VS DIRI & ORS: SC/CV/775/2020, on 18/11/2020. He urged us to dismiss the Appeal.
RESOLUTION OF THE ISSUE
I have earlier stated the real issue for the determination of this Appeal:
“Whether the Tribunal was right to hold that the Petition related to pre- election matter and so struck out paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 29, 30, 31, 33 of the Petition, for incompetence (for relating to pre- election matter), and finally, dismissed the Petition.”
I think the issue for the
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determination of this Appeal, whether the Tribunal was right to strike out the Petition, for incompetence, the same being founded on a pre-election matter, which was pending in the Federal High Court, before the Election, was properly considered by the Tribunal.
The Tribunal had held:
“The Petitioner herein found his (sic) ground upon which this Petition is predicated, as follows:
“That the entirety of the Edo State Governorship Election held on the 19th September, 2020 is invalid and void by reason of unlawful exclusion of the validly nominated candidates of the Petitioner from the said election. From what the Courts have defined as pre-election matters, the sole ground of this petition is clearly founded on events, issues and matters that occurred before the actual holding of the election. The sole ground of the Petition falls within the ambit of pre-election matters and we so hold. The Petitioner earlier filed a suit at the Federal High Court, Abuja Division, challenging INEC’s refusal to accept its substituted candidates.
The question that comes to mind is, whether the Tribunal is the appropriate venue for the ventilation of such
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grievances. The Electoral Act in Section 31 (5), provides that the venue for contesting that information provided by candidate in an affidavit or document is false, shall be the Federal High Court, State High Court and High Court of FCT. Election Tribunal has not been mentioned as the forum for hearing such complaint. In the light of the foregoing, we hold that this Tribunal, lacks the Jurisdiction to entertain this petition as it borders on pre-election matter/dispute.” (See Pages 684-685 of the Records of Appeal).
It appears clear and incontestable, that the Petition by Appellant was founded on events, issues and matters that occurred before the actual holding of the election, as clearly admitted by the Appellant, as shown in the Suit No. FHC/ABJ/CS/858/2020, filed on 24/7/2020 and pending at the Federal High Court, Abuja, even as at the 19/9/2020, when the Governorship Election was held in Edo State. That Suit was taken out by Appellant against INEC (3rd Respondent herein) to challenge the refusal to accept the substitution of Appellant’s Candidates for the governorship election, the earlier candidates for the offices of Governor and Deputy Governor
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having withdrawn from the race. Appellant’s candidates, who had withdrawn from the race voluntarily were; Amos Osalumeze Areloegbe and Afolabi Alfred Sarki-Ogah, Governorship and Deputy Governorship Candidates, respectively.
Appellant said that its official attempted to convey the notices of the withdrawal and substitution of its candidate to 3rd Respondent, but the 3rd Respondent’s officials refused to accept the documents on the ground that by the 3rd Respondent’s time table, the last day for substitution of candidates was 13/07/2020. Appellant therefore, sent a letter of complaint, dated 22/7/2020 to 3rd Respondent, annexing all the said documents, which was received by 3rd Respondent on 23/07/2020. Appellant said that the new candidates it nominated, as substitutes — Abhulimen Osadalor Prede and Erhomenya Ehigiator Collins (for Governor and Deputy, respectively) were refused by the 3rd Respondent (See Pages land 2 paragraphs 2.2 to 2.4 of the Appellant’s Brief).
With the above argument and admission by Appellant, I find it difficult to see or appreciate the need for this Appeal, as it is obvious, Appellant was not in the contest for
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the election and did not contest the Edo State Governorship Election of 19th September, 2020, as it fielded no candidate for the said election. Appellant had outstanding dispute with the 3rd Respondent on its failure/inability to field a candidate for the said election, and had initiated a pre-election case, to challenge the 3rd Respondent’s refusal (according to Appellant) to accept its candidates. But while the said Suit was pending, the election was held (without Appellant’s participation). Appellant cannot therefore talk of “unlawful exclusion” in the circumstance, as it appears it had no candidate(s) for/in the election, capable of being excluded, in my opinion.
By stating and/or admitting that it “attempted to convey the notices of withdrawal and substitution of its candidates to the 3rd Respondent, but the 3rd Respondent’s officials refused to accept the documents”, on grounds that the time for substitution had lapsed, Appellant clearly shows that it admits that it had no candidate at the election.
Even the case of ACN & Anor Vs Peter & Ors (2011) LPELR — 13402 CA, on which Appellant placed much reliance, the point was
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made that:
“…Pre-election disputes encompasses the stage of conducting party primaries, to holding of actual election; on the other hand, that post-election disputes contemplate actual election which is challengeable on the ground of undue election or undue return, albeit on a specific ground(s) as presented by Section 140(1) and (2) of the Electoral Act, 2006 for adjudication…
Taking the above pronouncement as a compass, it becomes obvious that the issue of valid nomination of a candidate and unlawful exclusion from election comes squarely within the Province of post-election dispute. The reason is simple.
An issue of valid nomination but unlawful exclusion is one of the grounds which Section 138 (1) of the Electoral Act, 2010, as amended, recognized and catalogued, precisely in Section 138(1) (d) thereof, as the basis for questioning the conduct of election in Nigeria. Unarguably, an election is invariably challenged after its conduct not prior to its conduct. Since the issue of valid nomination and unlawful exclusion is cognizable as a ground for such a post-election challenge, it axiomatically follows that it is an issue that is
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determined within the jurisdictional confine of exclusion Petition tribunals. It is my view that to reason that the issue of valid nomination and unlawful exclusion from election is for the regular Courts to entertain automatically strips candidates and political parties of their right to question conduct of election on this ground. The INEC will have a field day to exclude candidates from election.” I think the underlining words in the above statement of the law, in the case of ACN & Anor Vs Peter & Ors (Supra) are “valid nomination of candidate and unlawful exclusion from election.” That means, there must be a premise of agreement, that the political party had made a valid nomination of its candidate(s) for the election, but the Umpire (INEC) unlawfully excluded the said party and/or its said candidates from the contest. Of course, in that case, the Section 138(1) (d) of the Electoral Act 2010, as amended, applies as ground for questioning the conduct of the election, namely: “that the Petitioner, or its candidate was validly nominated but was unlawfully excluded from the election.” (Underlining mine).
In this case at hand, Appellant had
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graciously disclosed and affirmed that the issue of nomination of its candidates for the election was yet to be resolved at the time of the conduct of the election on 19/9/2020: that its Candidates had voluntarily withdrawn from the election, and:
“On 20/7/2020, an official of the Appellant attempted to convey the notices of the withdrawal and substitution of candidates to the 3rd Respondent, but the 3rd Respondent’s officials refused to accept the documents, on the ground that by the 3rd Respondent’s Timetable, the last day for the substitution of candidates was 13/07/2020. The Appellant thereafter sent a letter of complaint dated 22/07/2020, annexing all the said documents.” (See paragraph 2.3 of the Brief of Appellant).
The above argument appears to be a clear admission against interest by the Appellant, and as typified in the Suit No. FHC/ABJ/CS/858/2020, taken out by Appellant at the Federal High Court on 24/7/2020 to resolve the issue of nomination of candidates for the election. Thus, the issue of nomination was not resolved, not to talk of valid nomination. That suit was still pending at the Federal High Court, when Appellant filed the
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Petition before the Tribunal. And that, in my opinion, was an abuse of the Court Process. See the case of Nnolim vs Nnolim (2017) LPELR — 41642 CA, on abuse of Court process:
“An abuse of the Court Process is usually considered in the context of wrongful use of the processes of Court to defraud, annoy, irritate and/or frustrate an opponent or to clog/compromise the smooth administration of justice. See Saraki vs Kotoye (1992) 11/12 SCNJ 26; Ogoejeofo Vs Ogoejeofo (2006) 3 NWLR (Pt.966) 205… It is used to express disgust about wrong use of Court Processes to circumvent the rules and Principles of justice in a Case. See Nwosu vs PDP & Ors (2018) LPELR – 44386 (SC).
In Oyeyemi & Ors Vs Owoeye & Anor. (2017) LPELR – 41903 (SC), it was held:
“It is settled law that abuse of process contemplates multiplicity of suits between the same parties in regard to the same subject matter and on the same issue.”
Also, in Dingyadi & Anor vs INEC & Ors (2011) LPELR — 950 (SC), it was held that:
“…abuse of Court is not merely an irregularity… but constitutes fundamental defect which lead to dismissal
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of the process which is abusive.” See also Igbeke Vs Okadigbo & Ors (2013) LPELR – 20664 SC; Arubo vs Aiyeleru (1993) 3 NWLR (Pt.280) 125.
The Petition was therefore an abuse of the process, considering the pendency of Suit No. FHC/ABJ/CS/858/2020 on the same complaint.
A person is said to give evidence against his interest in a Suit, where he makes a statement, oral or written, which is adverse to his case, and it is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement. See the case of Artra Industries Nig. Ltd Vs NBCI (1998) 4 NWLR (Pt.456) 357 at 408 (SC); Aliu vs Inang & Ors (2020) LPELR – 50266 (CA).
Appellant admitted it had no candidate for the election, as the issue of nomination of its candidates was yet to be accepted by INEC.
Thus, there is nothing in the case of Appellant to show that it had validly nominated candidate(s) at the election on 19/9/2020, which the 3rd Respondent unlawfully excluded.
This case appears to be akin to that of Diri Vs ANDP & Ors (2020) LPELR – 50947 CA, where the Petitioner therein sought the nullification of the declaration of Appellant
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as the winner of the election, on the ground of unlawful exclusion and for breach of Section 138(1) (d) of the Electoral Act 2010, as amended. It was held that there cannot be an unlawful exclusion, where there is no valid nomination! And it is for the party who alleges unlawful exclusion, after valid nomination to stand election, to establish that fact of valid nomination and unlawful exclusion. See ANDP Vs DIRI & Ors (supra).
See also APP VS INEC (2019) LPELR – 48465 (CA), where it was held:
“The appellant herein by the suit leading to this appeal challenged the respondent’s refusal to replace its candidates that had withdrawn their candidature and membership of the party across the country with the names of the persons it sent to the respondent as its candidate for the 16-2-2019 election to various public offices. It is glaring from the questions raised for determination and the reliefs claimed for in the summons that the appellant contends that the said respondent’s refusal to replace the withdrawn candidates violates Sections 34 and 35 of the Electoral Act 2010 as amended. The appellant’s case is that it conveyed the said withdrawals and
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the list of candidates nominated to replace them not later than 45 days to the 16th February, 2019 election as required by Section 35 of the Electoral Act and that by virtue of Section 34 of the Electoral Act, the respondent was bound to publish, the displaying at its relevant offices and website, a statement of the full names and addresses of all its candidates standing nominated as substitutes for those who had withdrawn their candidature…. It is clearly a pre-election matter. As held by the Supreme Court in PDP Vs Onwe (2011) LPELR – 2901 (SC), the issue of substitution of a candidate is a pre-election matter. Section 285(14) (c) of the 1999 Constitution and amended provides that: “For the purpose of this Section, “pre-election matter” means any suit by — “285(14) for the purpose of this Section, “pre-election means any suit by (c) …” The question of whether the respondent’s refusal to accept the withdrawal of a candidature and the conveyance of such withdrawal to it as well as the replacement of the withdrawn candidate is not a matter that can be brought by an election petition under Section 138(1) (d) of the Electoral Act before an
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Election Tribunal and is not a matter within its jurisdiction. It is a question of withdrawal and substitution of candidates under Sections 33 and 35 of the Electoral Act, 2010. See PDP Vs Onwe (supra) in which the Supreme Court held that it is a High Court that has jurisdiction over issues of substitution of candidate and not an Election Tribunal. The fact that such refusal may amount to an exclusion of the replaced candidates from contesting the general election cannot by any stretch of imagination amount to an unlawful exclusion of a validly nominated candidate from an election. The suit questions the decision of the respondent refusing the withdrawal and replacement of the appellant’s candidates for the election and until that decision is set aside, the withdrawn candidates remain the validly nominated candidates and their replacement cannot arise. If the refusal is not set aside by the High Court before the general election, the withdrawal will not take effect, and the candidates purported to have withdrawn their candidature remain the validly nominated candidate of the political party for the election. The unlawful exclusion of those sought to be listed
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as their replacements cannot arise, as they are not yet validly nominated candidates as the replacement has not become effective.” Per Agim J.C.A. (now J.S.C.).
The above decision would actually be relevant to the pending Suit No. FHC/ABJ/CS/858/2020, but it is also applicable to this case at hand, with respect to the fact that issue of refusal to substitute a candidate is pre-election, not election Tribunal matter.
The trial Tribunal, in my opinion, had properly articulated the position of the law in this case when it came to the conclusion that the complaints of the Appellant in the Petition touched on matters and issues that occurred before the election of 19/9/2020, and so were not capable of invoking the jurisdiction of Election Tribunal to adjudicate on. The Tribunal was therefore right to strike out the Petition and the stated paragraphs thereof, for being on a pre-election matter.
It was not necessary, in my opinion, for the trial Tribunal to further proceed to taking the Petition, on its merits again, after having struck it out. The Appeal is accordingly dismissed.
Appellant shall pay cost assessed at N600,000.00 (Six hundred
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thousand naira) only to the Respondents.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading in draft copy, the judgment just delivered by my learned brother, Ita G. Mbaba, J.C.A. I agree with the conclusion reached thereat in dismissing the appeal.
I also dismiss the appeal for the same reason and abide by the order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I agree.
ABUBAKAR SADIQ UMAR, J.C.A.: I read in draft the lead judgment of my brother, Ita George Mbaba, J.C.A. just delivered. I am in agreement with the decision and the conclusion contained therein in the lead judgment.
It is abundantly clear from the facts and circumstances of this appeal that the Appellant’s grievance is a pre-election matter. In the absence of a valid nomination, the question of an unlawful exclusion cannot arise. The decision of this Court in APP V. INEC (2019) LPELR – 48465 (CA) also cited in the lead judgment of my learned brother, just delivered, is apt on the fact that the 3rd Respondent’s refusal to substitute the Appellant’s candidate is clearly a pre-election matter that cannot be accommodated by
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an Election Petition Tribunal.
Flowing from the above reason and of course the detailed reasons contained in the lead judgment of my brother, I too, find no merit in this appeal. Same is equally dismissed. I abide by the consequential order as to cost made in the lead judgment of my brother just delivered.
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Appearances:
APPELLANT:
CHIKAOSOLU OJUKWU ESQ, who settled the brief. For Appellant(s)
KEN E. MOZIA SAN, with him O. JOLAAWO, ESQ. SAN. (restricted appearance) – 1st Respondent
EMEKA ETIABA, SAN with him, ESTHER OLATUNJI (MISS) (restricted appearance) – 2nd Respondent
DR. ALEX IZINYON, SAN. with him, B. K. ABU, ESQ. (restricted appearance) – 3rd Respondent For Respondent(s)
