DR. (MRS.) MARIAM NNAEMEKA COMFORT ALI & ANOR V. SENATOR PATRICK ENEBELI OSAKWE & ORS
(2010)LCN/3904(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 29th day of June, 2010
CA/B/EPT/37/2010
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 65 OF THE CONSTITUTION AS TO THE QUALIFICATION OF FOR ELECTION AS A MEMBER OF THE SENATE
Section 65 of the Constitution, which I set out earlier, deals with “Qualifications for Elections”, and the gist of its sub-section (2) (b) is that a person would be qualified for election as a member of the Senate if “he is a member of a political party and is sponsored by that party”. PER AMINA ADAMU AUGIE, J.C.A
INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 68 OF THE CONSTITUTION AS TO WHETHER A MEMBER OF THE SENATE OR OF THE HOUSE OF REPRESENTATIVES IN THE HOUSE SHALL VACATE HIS SEAT OF WHICH HE IS A MEMBER WHERE HE BECOMES A MEMBER OF ANOTHER POLITICAL PARTY BEFORE THE EXPIRATION OF THE PERIOD FOR WHICH THAT HOUSE WAS ELECTED
Section 68 of the same constitution dealing with “Tenure of seat of Members”, provides – (1) A member of the senate or of the House of Representatives in the House shall vacate his seat of which he is a member if – (g) Being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected”. PER AMINA ADAMU AUGIE, J.C.A
MEANING OF THE WORDS “QUALIFICATION” AND “TENURE”
“Qualification” is “the possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible for a position or office or to perform a public duty or function” – see Black’s Law Dictionary: 8th Ed. The literal meaning of “tenure” on the other hand is – “the term during which a thing is held, as an office” – see The New International Websters Comprehensive Dictionary: Encyclopedic Ed. As we can see, “qualification” and “tenure” have different attributes; while qualification has to do with whether a person is eligible to stand for election to an office, tenure has to do with how long that person stays in that office. PER AMINA ADAMU AUGIE, J.C.A
INTERPRETATION OF SECTIONS 140 AND 145 OF THE ELECTORAL ACT, 2006 AS TO HOW AN ELECTION AND RETURN AT AN ELECTION UNDER THE ACT CAN BE QUESTIONED
In addition, the Electoral Act, 2006 provides in its Sections 140 and 145 – 140 (1) – No election and return at an election under this Act shall be questioned in any manner other than by a Petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent Tribunal or Court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a Party. 145 (1) – An election may be questioned on any of the following grounds… (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 noncompliance with the provisions of this 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. PER AMINA ADAMU AUGIE, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. Dr. (Mrs.) Mariam Nnaemeka Comfort Ali
2. Peoples Democratic Party [PDP] Appellant(s)
AND
1. Senator Patrick Enebeli Osakwe
2. Accord Party [AP]
3. Independent National Electoral Commission [INEC] Respondent(s)
AMINA ADAMU AUGIE, J.C.A (Delivering the Leading Judgment): This is the third time the parties are coming back to this Court over the Election Petition filed by the Appellants at the Delta State Governorship and Legislative Houses Election Tribunal, on the 26th day of May, 2007.
The election to the office of Senator for Delta-North Senatorial District held on the 29th day of April, 2007, and the 1st Respondent, who was sponsored by the 2nd Respondent, was declared the winner by the 3rd Respondent. The 1st Appellant and her party, the 2nd Appellant filed the said Petition at the Tribunal wherein they prayed for the following –
i. A DECLARATION that the 1st Respondent was not properly and/or validly nominated by the 2nd Respondent to contest the Senatorial Election for the office of the Senator for Delta-North Senatorial District and which election was held on 29th day of April, 2007.
ii. A DECLARATION that the 1st Petitioner being the person validly nominated as candidate by the 2nd Petitioner and being the person with the highest number of votes scored at the said election (save for the votes returned for the 1st Respondent upon the 1st Respondent’s invalid nomination and participation) be RETURNED by the 3rd Respondent as the winner of the election.
iii. AN ORDER restraining the 1st Respondent from parading himself as the winner of the said election or as the Senator and nor Senator Elect of the office of Senator for Delta Senatorial District.
iv. AN ORDER directing the 3rd Respondent to further recognize the Petitioner as the winner and person entitled to be duly returned to office of Senator for Delta North Senatorial District consequent upon Senatorial election of the 29th day of April, 2007.
The Grounds upon which the said Petition was predicated are that –
A. The 2nd Respondent did not validly nominate and or present any candidate to contest the above election in accordance with Section 32 of the Electoral Act.
B. The purported nomination and purported submission of the name of one Aninam Ozuem Chukwusa to contest the above election by the 2nd Respondent was not in accordance and/or in compliance with the mandatory provisions of Section 32 of the Electoral Act, 2006.
C. The 2nd Respondent did not validly change the purported candidature of the said Aninam Ozuem Chukwusa to that of the 1st Respondent to contest the above election in accordance with Section 34 of the Electoral Act, 2006.
D. The purported candidature of the said Aninam Ozuem Chukwusa was not validly withdrawn by the 2nd Respondent in accordance with the Section 34 of the Electoral Act, 2006.
E. The purported substitution, nomination and participation of the 1st Respondent in the above election was not in accordance and/or in compliance with the provisions, principles and intendment of the Electoral Act
F. The 1st Respondent whose election is questioned was, at the time of the election, not qualified to contest the election.
G. In view of the above, all the votes cast in favour of the 1st Respondent stand nullified as his nomination, substitution, candidature and participation in the above election was not in accordance and/or in compliance with the provisions, principles and intendment of the Electoral Act, 2006.
But the Appellants failed to file Pre-Hearing Notice Form TF007, and the 1st and 2nd Respondents filed an Application to have the Petition dismissed as being abandoned. The Tribunal agreed with them in its Ruling delivered on the 6th of September, 2007, and dismissed the petition for failure to file Pre-Hearing Notice as provided in Paragraph 3 (4) of the Election Tribunal and Court Practice Directions 2007.
The Appellants then filed the first Appeal No. CA/B/EPT/261/2007 in this Court and in a Judgment delivered on the 28th of May, 2008, the Ruling of the Tribunal was set aside, and the Petition was sent back to the Tribunal “to continue from the stage it reached before the Ruling”.
Shortly after the Petition got back to the Tribunal, the Respondents filed a number of Applications and preliminary objections challenging the jurisdiction of the Tribunal to entertain the Petition. The Tribunal upheld the objections in its Ruling delivered on 20th September, 2008, and the Appellants then filed the second Appeal No. CA/B/EPT/371/2008. In a Judgment delivered on the 20th of May, 2008, this Court held as follows-
“It is important to note that in Paragraph 1 (of the Petition), the Petitioners stated that the 1st Respondent “defected from the 2nd Appellant’s party to purportedly join the 2nd Respondent’s political party, that is the Accord Party”. Then in paragraph 15 he had stated that the 1st Respondent did not provide the 3rd Respondent evidence of his membership of the 2nd respondent’s political party. The foregoing pleading of facts required evidence to be resolved at the trial in the light of the provision of S.65(1) and (2) of the 1999 Constitution which provides that a person shall be qualified for election as a member of the Senate if:
The word “purport” means “to profess or claim-falsely”, to “seem to be”- So if the 1st Respondent purportedly joined the 2nd Respondent, it means that the joining seems to be what it is not or is a profession or claim that is false. Therefore on the pleading and the Petition on this point, the joining has to be straightened out not at an interlocutory stage but at the trial in the light of the requirement of Section 65 (1) and (2) of the Constitution. But surprisingly the lower Tribunal without hearing evidence observed at pages 450 – 451
“There was nothing to show that 1st contested Respondent at the time he contested the election of 29th April, 2007 to the Delta State Senatorial Seat, was not a member of the 2nd Respondent (Accord Party)”.
The question becomes where else will 1st Respondent’s membership or non-membership of the 2nd Respondent be shown other than at the hearing in light of the averments in the Petition reproduced above. Therefore the above observation of the Tribunal at the interlocutory stage of the proceedings clearly touched on a matter meant for determination at the substantive hearing of the Petition. The Courts have frowned at such steps … On this score alone, the appeal ought to succeed … The Grounds of Appeal and the appeal itself succeed. The Ruling of the Tribunal dismissing the Petition is hereby set aside. The Petition is remitted to the lower Tribunal for hearing on the merits”.
The first time, the Tribunal dismissed the Petition because the Appellants failed to apply for the matter to be set down for hearing within time, and this Court sent it back “to continue from the stage it reached before the Ruling”. The second time around, this Court specifically mentioned Paragraphs 1 and 15 of the Petition on which parties had joined issues, and then ordered that the Petition be sent back to the Tribunal for hearing on the merits.
But what did the parties do? As soon as the Petition went back to the Tribunal for the third time, they proceeded to file a spree of Applications and Objections that were almost the same as the ones they filed before. The 1st Respondent’s Application is dated 20th Jul,y 2009, and it prayed for-
1. An Order granting leave to the 1st Respondent/Applicant to file this Motion.
2. An Order that the Petition… be dismissed as abandoned and for lack of jurisdiction for failure … to file Pre-Hearing Notice Form TF007 within time pursuant to Paragraph 3 (a) of the Election Tribunal and Court Practice Directions
3. An Order that upon dismissal of the Petition on the 6th day of September, 2007, this Hon. Tribunal is functus officio pursuant to paragraph 3 (5) of the Election Tribunal and Court Practice Directions 2007.
The Grounds for the said 1st Respondent’s Application are as follows –
i. The Petitioners failed to comply with paragraph 3 (a) of the Election Tribunal and Court Practice Directions 2007 by failing to apply for Pre-Hearing Notice within time, thereby ousting the jurisdiction of this Hon. Tribunal.
ii. That where a Petitioner and the Respondent fail to bring an application for Pre-Hearing Notice under Election Tribunal and Court Practice Directions 2007, the Tribunal or Court shall dismiss the Petition as abandoned and no application for extension of time to take that step shall be filed or entertained.
iii. The Petitioners applied for extension of time to file Pre-Hearing Notice in breach of Paragraph 3 (a) of the … Practice Directions 2007.
iv. This Hon. Tribunal dismissed the Petition. Dismissal of the Petition pursuant to Paragraphs (3) and (4) above is final, and accordingly the Tribunal or Court shall become functus officio.
v. The Supreme Court of Nigeria in Okereke V. Yar’ Adua (2008) 12 NWLR (Pt 1100) 95 at 118 stated categorically that failure to file Pre-Hearing Notice within time shall result in dismissal of the Petition as abandoned and the Petitioner foreclosed forever, to wit …
vi. That the Court of Appeal, Benin Division that granted the Petitioner’s extension of time to file Pre-Hearing Notice inadvertently overlooked the binding authority of Okereke V. Yar’ Adua (supra), but recently agreed in three separate Rulings that its Judgment on extension of time to file Pre-Hearing Notice were given per incuriam in the cases of (3 unreported Rulings of this Court listed). All these cases are similar to the instant Petition.
vii. The Court of Appeal and this Hon. Tribunal are bound by the decision of the Supreme Court in Okereke V. Yar’ Adua (supra).
viii. By the doctrine of stare decisis, the Court of Appeal, this Hon. Tribunal are bound by the interpretation of paragraph 3 (4) of the … Practice Directions 2007 by the Supreme Court in Okereke V. Yar’ Adua (supra), that failure to file Pre- Hearing Notice shall result in the dismissal of the Petition and no extension of time should be entertained or granted. This decision is binding on the Court of Appeal and this Hon. Tribunal.
ix. Jurisdiction cannot be acquired by consent of the parties nor can it be enlarged by estoppels.
x. That in Uchechukwu V. Bielonwu: EPT/DT/HA/15/2007 in the Ruling of this Tribunal dated 19th November, 2008. This Hon. Tribunal despite extension of time by the Court of Appeal to file Pre-Hearing Notice dismissed the petition on the authority of Okereke V. Yar’ Adua (supra). The Ruling is attached herein as Exhibit “A”. This matter is on all fours with the present petition.
The 2nd Respondent’s Application is also dated 20th July, 2009, and it prays for an order “striking out/dismissing” the Petition, on the following Grounds-
(a) Failure of the Petitioners to state the name of the person returned as the winner of the election in the body of the petition.
(b) Failure of the Petitioners to state the holding of the election in the body of the Petition.
(c) The issues of sponsorship, nomination and substitution of the 1st Respondent before the election are pre-election matters triable by the Federal High Court or High Court of a State and not a National Assembly Election Tribunal.
(d) The matters pertaining to sponsorship and nomination of the 1st Respondent by the 2nd Respondent are internal affairs of the 2nd Respondent and not justiciable before this Hon. Tribunal.
(e) The Petitioners’ failure to join Aninam Ozuem Chukwuosa, as a Respondent to the Petition in the light of the allegation that the said Aninam Ozuem Chukwuosa was allegedly wrongly substituted.
(f) The election was not questioned on any of the grounds stated in Section 145 of the Electoral Act, 2006.
The 2nd Respondent also filed another Application dated 22nd July, 2009.
The said Application prayed the Tribunal for the following orders –
1. Leave to file this Application predicated on a challenge to the jurisdiction of this Hon. Tribunal to entertain the petition.
2. An Order of this Hon. Tribunal striking out/dismissing the Petitioner’s Petition … for want of jurisdiction.
The Grounds for the second Application are simply as follows –
(a) Failure of the Petitioners to state the name of the person returned as the winner of the election in the body of the petition.
(b) Failure of the Petitioners to state the holding of the election in the body of the Petition.
The 3rd Respondent also filed two Applications. The first Application is dated 15th July, 2009, and it prayed the Hon. Tribunal for the following –
1. An Order for leave to … file and argue Motion on Notice dismissing this Petition as an abandoned Petition, outside Pre-Hearing Session, for lack of jurisdiction.
2. An Order dismissing the Petition … as an abandoned Petition and lack of jurisdiction.
The Grounds for the 3rd Respondent’s objection are as follows –
1. The Petitioners failed to apply for Pre-Hearing Notice as in Form TF 007 contrary to paragraph 3 of the Election Tribunal and Court Practice Direction 2007.
2. The Petition … by virtue of the … Practice Direction is an abandoned Petition.
3. The only DUTY of the Hon. Tribunal in the circumstances of this case is to DISMISS the … Petition as an ABANDONED PETITION.
4. The Hon. Tribunal and/or any other Court cannot vest jurisdiction on the Hon. Tribunal where there is no jurisdiction.
5. This Hon. Tribunal lacks jurisdiction to entertain and/or maintain this Petition which is an abandoned Petition by virtue of the Judgment of the Supreme Court in the case of Okereke V. Yar’Adua (supra) and in view of the Ruling of this Hon. Tribunal in the case of Uchechukwu V. Bielonwu (EPT/DT/HA/15/2007) delivered on the 19th day of November, 2008.
Pursuant to the Preliminary Objection it raised in its Reply to the Petition, the 3rd Respondent filed another Application dated 18th July, 2009, for –
1. An Order of this Hon. Tribunal setting down for hearing and determination the Notice of Preliminary Objection set out in the 3rd Respondent’s Reply to wit:
a. That the ground of the Petition challenging the nomination of the 1st Respondent by Accord Party is a pre-election dispute.
b. Pre-election disputes are outside the jurisdiction of the Election Petition Tribunal.
c. Proper parties are not joined to this Petition.
d. That the Grounds of the Petition are unknown and not in accordance with Section 145 of the Electoral Act, 2006.
2. Order sought from this Hon. Tribunal:
Dismissal of this Petition as same is incompetent in law.
The Appellants responded with their own Notice of Preliminary Objection dated 24th July, 2009, which challenged the competence of all the five Motions filed by the 1st, 2nd and 3rd Respondents, on the following Ground –
1. The above named Motions are incompetent and constitute abuse of the process of this Hon. Tribunal.
Particulars of Incompetence
(i) The 1st Respondent having failed, refused and or neglected to file answers to questions in pre-hearing information sheet cannot take part in pre-trial session.
(ii) The 2nd Respondent having exhausted the interlocutory Applications indicated in his answer for pre-hearing session dated and filed on 21st August, 2008 cannot spring surprise by introducing another interlocutory application to raise issues not pleaded in his defence, and not mentioned in his answers to pre-hearing questions.
(iii) The 3rd Respondent who has not filed a Reply (Defence) to the Petition is prohibited from raising any preliminary objection as demurrer has been abolished.
Particulars of Abuse of Process
(i) All the Motions of the Respondents raised issues which have been decided upon by this Tribunal and the Court of Appeal Benin Division.
(ii) This Hon. Tribunal is functus officio on those issues raised in the various motions.
And further take notice that at the hearing of these preliminary objections the Petitioners shall rely and use the processes of this Court, the Rulings and decisions of this Hon. Court in this Petition and the two decisions of the Court of Appeal which are already part and parcel of the processes of this Court.
At the close of Pretrial Conference on 5th August 2009, the Tribunal ordered that “all objections on ground of jurisdiction should be taken and addressed at the close of trial and will be ruled upon on the day of the Judgment”, and with the consent of counsel, two issues were formulated for trial, as follows-
1. Whether or not the 1st Respondent whose election (return) by the 3rd Respondent is questioned in this Petition was, at the time of the election on the 29th April, 2007, qualified to contest the election, and
2. Whether or not this Tribunal has jurisdiction to hear and determine this Petition.
At the trial, the Appellants called only PW1 (Barrister Ben Okonkwo) who adopted his written statement on oath and tendered Exhibits P1- P7 (h). The 1st Respondent testified as, RW1, and he tendered Exhibits R1 – R9 A. The 2nd Respondent rested its case on that of the 1st Respondent, while the 3rd Respondent called its Director of Operations in Delta State, Chris Nwosu, who testified as RW2 and tendered Exhibit R10 in evidence.
Written Addresses were adopted, and in its Judgment delivered on 16th October, 2009, the Tribunal struck out the Appellants’ “objection” to the other “objections” for being an abuse of Court process, and held as follows on the issues of Paragraph 4 (1) (c) of the 1st Schedule to the Electoral Act –
“…The heading in an Election Petition cannot be upgraded to the status of a paragraph in the Petition. It remains a heading and the law requires that the statements be made in the paragraph of the Petition. … Paragraph 17 of the Petition no doubt did not contain the name of the 1st Respondent, however, he was described and his scores were stated. … We sustain this leg of objection”.
The Tribunal further held as follows on the issue of Pre-Hearing Notice –
“… The submission of learned counsel … is that we strike out the Petition for failure to apply for the issuance of Form TF 007. On what basis if we may ask? When the Court of Appeal has extended the time for him? We are not unmindful of the fact that disobedience to Court orders is the order of the day in Nigeria today. Litigants willfully refuse to obey Court Orders and most times with the collusion of their counsel. As if that is not enough, we wake up today and a senior counsel prayed that we ignore the orders of the Court of Appeal.
This is an invitation to anarchy. It is bad enough when a litigant willfully disobeys a Court order but where the willful disobedience to the Court order is by a Court of superior record, then God help us: May we never see the day when a superior Court of record will wake up one day and decide to pick and choose the lawful orders of the higher court it will obey and choose avoidance that it will not. For the avoidance of doubt, with regard to the issue of extension of time to file pre-hearing sheet, which issue was resolved by the Court of Appeal, it is now res judicata. It binds the parties, the Tribunal, and even the Court of Appeal. Consequently, this second leg of objection is hereby resolved against the 1st and 3rd Respondents and in favour of the Petitioners. It is accordingly dismissed”.
At the end of the day, the Tribunal concluded as follows –
“It is painful to see how counsel changes the Rule relating to trials at will. In the Petition, the Petitioners are alleging that the 1st Respondent has no proof of being a member of the 2nd Respondent, and when Exhibit R8 (1st Respondent’s membership card of the 2nd Respondent) was tendered the Petitioners shifted ground. We wonder the amazing speed with which the Petitioners felt free to approbate, reprobate, and even take a somersault in the course of this trial.
On one hand, they allege pre-election matters; on the other hand, they are claiming that the 1st Respondent left the 2nd Petitioner to the 2nd Respondent though he has no evidence of membership to the 2nd Respondent, and now they are claiming that the 1st Respondent is still a member of the 2nd Petitioner because he could not provide proof of resignation. In all these acrobatics we find no credible evidence to substantiate allegations against the Respondents. For the reasons give above, we are of the opinion that the Petitioners are unable to prove that the 1st Respondent was not qualified to contest the election of 29th April, 2007. Accordingly, this issue is also resolved against the Petitioners and in favour of the Respondents. The resolution of this issue against the petitioners will leave the Tribunal with no option than hold that this Petition lacks merit and it ought to be dismissed. Consequently, this petition … is hereby dismissed”.
Dissatisfied, the Appellants have come back here for the third time with a Notice of Appeal containing eight Grounds of Appeal, and in their brief of argument prepared by James Ocholi, SAN, they formulated eight Issues for Determination from the eight Grounds, which is not the best thing to do.
Issues for Determination are not formulated to coincide with the number of grounds of appeal. Grounds of Appeal allege the complaints of errors of law, fact or mixed law and fact against the Judgment appealed against, while Issues for Determination are short questions raised against one or more Grounds of Appeal, and are meant to be a guide to the arguments or submissions to be advanced in support of the said Grounds of Appeal.
Be that as it may, the issues formulated by the Appellants are as follows –
(1)Whether from the nature and timing of the objections raised by the 2nd Respondent in his application dated 22nd July, 2009, the trial Tribunal was not wrong in holding that paragraph 49(2) of the 1st schedule to the Electoral Act, 2006 does not apply to the said objection.
(2) Whether the Appellants’ Petition complied with the provisions of paragraph 4 (1) (c) of the 1st schedule to the Electoral Act, 2006.
(3) Whether the trial Tribunal was correct in striking out paragraphs 1, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14 and 16 of the facts pleaded in the Petition and upon which Ground F of the petition was based.
(4) Whether the trial Tribunal was right in entertaining the same objection it earlier upheld on the 23/9/2008 (when it dismissed the petition) after the said dismissal order was set aside, and a trial on the merit was ordered by this Hon. Court.
(5) Whether the trial Tribunal was right when it held that the material evidence elicited from the 1st Respondent under cross-examination showing that he enjoyed the proceeds of membership of the 2nd Appellant (PDP) in the Senate until the 2nd day of June, 2007 was not relevant to the ground of complaint in the Petition wherein the Appellants contends that the 1st Respondent was not qualified to contest the election into the seat of Delta North Senatorial Election on the ticket of Accord party (2nd respondent) on the 29th April, 2007.
(6) Whether the trial Tribunal was correct when it held that the petitioners led evidence on a constitutional issue which evidence was unpleaded and in contradiction of their Petition having regard to the ground upon which the Appellants challenged the return of the 1st Respondent.
(7) Whether the Appellants proved their complaint against the 1st Respondent.
(8) Whether the trial Tribunal was correct in distinguishing the ratio decidendi in the case between Dingyadi & Ors v. Wamako & Ors (2006) 7 NWLR (pt. 1116) 295 and this case, and refused to apply same to this case.
The 1st Respondent, however, submitted in his own brief settled by Arthur Alofoje, Esq., that having regard to the Appellants’ eight Grounds of Appeal, the following three Issues arise for determination in this appeal –
1) Whether the Tribunal was right in striking out the Petition for want of jurisdiction for non-compliance with paragraph 4 (1)(c) of the 1st Schedule of the Electoral Act, 2006.
2) Whether the 1st Respondent was qualified to contest the senatorial Election held on the 29th day of April, 2007.
3) Whether the Tribunal was right in striking out paragraphs 1, 4, 5, 6, 8, 10, 11, 12, 13, 14 & 16 of the facts in Support of the petition.
The 2nd Respondent also formulated the following three Issues from the said Grounds of Appeal in its brief settled by Ekemjero Ohwovoriole, Esq. –
1) Whether the. Tribunal rightly entertained and granted the 2nd Respondent’s Application challenging the competence of the petition.
2) Whether the Tribunal was right in striking out paragraphs 1, 4, 5, 6, 8, 10, 11, 12, 13, 14 & 16 of the facts pleaded in the Petition and upon which Ground F of the Petition was based.
3) Whether the Tribunal rightly held that the Appellants failed to prove that the 1st Respondent was not qualified to contest the Election.
The 3rd Respondent also submitted in its brief settled by Ogaga Ovrawah, Esq., that three Issues call for determination in the appeal, as follows –
(i) Whether the trial Tribunal was correct when it held that the Petition did not comply with the provisions of Paragraph (1) (c) of the First Schedule to the Electoral Act 2006?
(ii) Whether upon abandonment of Grounds A to G of the petition and the striking out of the itemized paragraphs, were there sufficient and adequate facts remaining to sustain the Petition’s only surviving Ground F?
(iii) Whether the trial Tribunal was correct when it refused the Appellants’ invitation to apply the ratio in Dingyadi & Ors v. Wamako & Ors (2006) 7 NWLR (Pt. 1116) 295 in the instant Petition?
From all indications, parties not only chose to complicate what is otherwise a simple matter, they elected to distort the clear directives of this Court. As far as this court is concerned, the Petition was sent back to the Tribunal on the 20th of May, 2009 for hearing on the merits after the second appeal. The Tribunal should not have lost sight of that order from this court, and in my view, should have been firm enough to stop the Respondents or refuse to entertain their objections, which ended up being an exercise in futility anyway because, even as it upheld some of the objections in its Judgment, the Tribunal still considered the merits of the petition and dismissed same.
Some of the objections were verbatim repetitions of the objections raised and upheld by the Tribunal that led to the first and second appeals, and we would be guilty of being accessories after the fact if we succumb to the same pressure like the Tribunal and address the issues relating thereto.
In other words, I am not going to consider any of the Issues relating to the Applications or Preliminary objections filed by the Respondents after the second appeal to this court, and it is my view that the Issue that will resolve this appear is whether the Tribunal was right to dismiss the Petition.
However, to make sense of the Tribunal’s decision, we will have to look at whether it was right to strike out some paragraphs of the Petition, which is in line with the Appellants’ Issue 3, the 1st Respondent’s Issue 3, the 2nd Respondent’s issue 2, and the 3rd Respondent’s Issue 2 as well.
Now, the Appellants abandoned all their Grounds except Ground F, and their complaint is that the Tribunal struck out the abandoned Grounds together with facts pleaded in the Petition, which also supported Ground F. It is their contention that in striking out Paragraph 1 for instance, which does not offend any section of the Electoral Act, or relate to pre-election matters as it wrongly held, the Tribunal “sought to remove the carpet” from their legs even before considering the merit of their complaint in Ground F.
The 1st Respondent submitted that the Tribunal found that the Appellants had no objection to the striking out of the Grounds and facts, and they have appealed against the Tribunal’s finding; that the Appellants cannot concede or fail to object to the striking out of the Grounds and facts at the Tribunal and now object to their being struck out in this Court, citing Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248, Ngige v. Obi (2006) 14 NWLR (Pt 999) 1; and that the Tribunal had the jurisdiction to do what it did, particularly when the Appellants abandoned the Grounds, citing Jang v. Dariye (2003) 15 NWLR (Pt. 843) 1, Order 25 Rule 4 of the Federal High Court Rules, and Uzodimma v. Udenwa (2004) 1 NWLR (Pt. 554) 303.
The 2nd Respondent also argued that a careful reading of Ground 2 of the Grounds of Appeal show that they did not appeal against the Tribunal’s finding that the said Paragraphs are pre-election matters which were liable to be struck out as incompetent; that they are deemed to have accepted the Tribunal’s finding, citing U.B.A. Plc v. S.A.F.P.U. (2004) 3 NWLR (pt 861) 516; and to that end that their submissions are also liable to be struck out.
The said Ground 2 of the Appellants’ Grounds of Appeal complains that –
“The trial Tribunal erred in law when it struck out paragraphs 1,4,5,6,7,8,8, 10, 11, 12, 13, 14 and 16 of the facts pleaded by the Petitioners in support of the ground of complain and thus, deprived the Appellants the opportunity to rely on pleaded facts in support of the ground of complain in the Petition
i. The Appellants’ Petition had Grounds A – G as Grounds of compliant out of which all the others were abandoned except Ground F.
ii. The Particulars of facts pleaded by the Appellants namely: paragraphs 1 – 21 did not categorize the facts under separate grounds of complaint.
iii. The Tribunal struck out the above listed paragraphs of the particulars of facts which were relevant to sustain Ground F of the ground of complaint.
iv. It was after the trial Court had struck out these paragraphs of facts that it proceeded to consider the merit of Ground F which required the existence of relevant facts pleaded in the Petition but had been struck out.
v. The trial Tribunal in its Judgment stated that…
vi. Some of the paragraphs struck out were not attacked.
The 1st and 2nd Respondents’ contention appears to be that the Appellants did not object or appeal against the finding that some paragraphs of their Petition touch on pre-election matters and should therefore be struck out, but the complaint in Ground 2 of the Appellants’ Grounds of Appeal is that the Tribunal struck out paragraphs that were relevant to sustain Ground F, which is the only Ground left after they abandoned all the other Grounds on which their Petition is predicated. They concede that they abandoned the other Grounds but contend that the Tribunal should not have struck out the averments of facts in their Petition that are relevant to prove their case, and I do not see why this Court cannot look into that aspect of their grievance.
The 2nd Respondent, however,-submitted in the alternative that the averments in the said paragraphs are centered on nomination, substitution and sponsorship under Section 32 and 34 of the Electoral Act, 2006, citing Agbakoba V. INEC (2005) l8 NWLR (Pt. 1199) 489; and the Tribunal was right to hold that they are pre-election matters that can only be resolved in the Federal High Court or State High Court, cited Zaranda v. Tilde (2008) 10 NWLR (Pt. 1094) 184. This Court was urged to affirm the said decision.
In the case of the 3rd Respondent, the relevant aspect of its submissions is that the said paragraphs were caught by the law against raising pre-election matters before an election Tribunal, and it was the duty of the Tribunal to apply the law and strike out the offending paragraphs; that a community reading of the said paragraphs would reveal that all of them dealt with pre-election matters; and that the contents of paragraphs 1, 4 and 15 cannot provide the needed sustenance to keep the Petition alive.
To make sense of this Issue, a clear distinction must be made between Grounds A, B, C, D, E and G, which the Appellants abandoned, and the remaining Ground F, wherein the Appellants pleaded that –
“The 1st Respondent whose election is questioned was at the time of the election, not qualified to contest the election”.
Paragraphs 1 to 4, and 15, which are relevant to this appeal, states that-
1. The 1st Respondent was a member of the 2nd Petitioner Political Party, that is, the PDP until sometime in February 2007, when he abandoned and defected from the party to purportedly join the party, that is, the AD.
2. That while being a member of the 2nd Petitioner Political Party, the 1st respondent had contested and lost the primaries of 2nd Petitioner for the nomination to contest for the office of Senator for Delta-North Senatorial District and which primaries were won by the 1st Petitioner herein.
3. That the Report of the National assembly Appeal Panel set up by the 2nd Petitioner approved the victory and return of the 1st Petitioner as the Delta- North Senatorial candidate as aforesaid.
4. That the 1st Respondent decided to pursue his future political activities by abandoning, defecting and leaving the 2nd Petitioner Political Party whereupon he purportedly joined the 2nd Respondent Political Party.
15. Furthermore, the 1st respondent did not provide the 3rd Respondent with any evidence that he was or is a member of the 2nd Respondent Political Party and therefore his nomination, participation and return as winner in the said election is in violation of the Electoral Act as aforesaid.
In the second appeal to this Court, Ibiyeye, JCA, who wrote the lead Judgment, reproduced paragraphs 1, 2, and 15 in the Judgment and said-
“It is important to note that in Paragraph 1 … the Petitioners stated that … Then in paragraph 15 he had stated that … The foregoing pleading of facts required evidence to be resolved at the trial in the light of the provision of S.65(1) and (2) of the 1999 Constitution – Therefore on the pleading and the Petition on this point the joining has to be straightened out not at an interlocutory stage but at the trial in the light of the requirement of Section 65 (1) and (2) of the constitution.”
In his final address, learned senior counsel for the Appellants, although said –
“Although the Petitioners pleaded Seven (7) Grounds namely A-G in their Petition, it is obvious from the issue formulated above that only Ground F has been vigorously pursued in the trial of the Petition and as such it is the sole issue arising for the determination on the merit”. (See page 947 of the Record).
He further stated at page 977 in answer to the 1st Respondent’s Address-
“Although the Petitioners pleaded seven (7) grounds of complaint. Namely Grounds A-G supported with several facts serially (7) grounds of complaint. Namely Grounds A-G supported with several facts serially numbered and paragraphed in the pleadings, the petitioners were several facts serially numbered and paragraphed Appeal No: CA/B/EPT/371/2008 delivered on 20th May, 2009 between the Parties herein at the Court of Appeal, Benin to formulate only one (i) issue from ground F of the grounds of complaint in the Petition. The effect of this clearly means that all other grounds of complaint by the Petitioners have been abandoned. It is therefore submitted that grounds that have been abandoned are no longer available for arguments such as have canvassed by the respondents herein”.
The Tribunal set out paragraphs 1, 4, 6 to 15 in its Judgment, and held-
“Having found out that paragraphs 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 16 contained facts relating to pre – election matters, we have no option than to strike those paragraphs out as incompetent. However, learned senior counsel to the Petitioners admitted that they are abandoning grounds A, B, C, D, E and G of the Petition. Consequently, these grounds having been abandoned are hereby struck out as well. The grounds and paragraphs struck out for all intent and purpose”. (See page 1077 of the Record)
Despite striking out these paragraphs, the Tribunal further said at p. 1048 –
“In the Petition at hand, the case of the Petitioners is that the 1st Respondent has abandoned, and defected from the 2nd Petitioner, that has been consistent in paragraphs 1, 4 and 15 of the Petition and even in the other paragraphs that were earlier struck out in the course of this Judgment”. (Highlight mine).
The Appellants submitted that it is clear from this statement the tribunal that the paragraphs earlier struck out are relevant, and needed to be preserved as they constitute facts they had pleaded and are entitled to rely upon to prove Ground F of their grounds of complaint, and I have to agree.
Maybe not all, but Paragraphs 1 and 4 should not have been struck out, because they merely set out the background facts leading to the election. Looking at the sequence of events and the statements of the Tribunal, it is obvious that the Tribunal had not evaluated the relevance of the said paragraphs 1 and 4 of the Appellants’ Petition before striking them out.
This is evident from the fact that the Tribunal struck out the said paragraphs before even mentioning the abandoned Grounds and striking them out.
The averments in the paragraphs support the Grounds of complaint, not the other way round. The Tribunal struck out the paragraphs first, then Grounds A, B, C, D, E and G of the Appellants’ Grounds of complaint, and when it was evaluating the evidence before it, relied on the paragraphs that it had earlier struck out to explain the case as presented by the Appellants.
What is more, paragraphs 1 and 4 were specifically mentioned by this Court in its Judgment of the 20th May, 2009, when identifying the issues joined by the parties that should have been resolved after a trial before the Tribunal.
There is nothing wrong with the Tribunal striking out the paragraphs of the Petition that are hinged on Grounds relating to pre-election matters, what is unacceptable is that it proceeded to strike them out without a proper appraisal, and at the end of the day, threw out the baby with the bath water.
The Appellants submitted that this Court has unfettered powers to set aside the order striking out the paragraphs, and in its place consider them as relevant facts in the fair determination of this case. No doubt, this Court has powers to do exactly that, but a close reading of the said paragraphs show that the Tribunal was right to strike out paragraphs 5 to 14 and 16, as they are hinged on the Grounds abandoned by the Appellants. However, the averments in paragraphs 1 and 4 are relevant, and are hereby restored.
We now come to the crux of the matter in this appeal, and it is clear from all that has been said that it has nothing to do with the conduct of the Senatorial election that took place on the 29th of April, 2007, but everything to do with the qualification of the 1st Respondent to contest the election.
Section 65 of the 1999 Constitution dealing with the subject, provides –
(1) Subject to the provisions of Section 66 of this Constitution, a person shall be qualified for election as a member of:
(a) The Senate if he is a citizen of Nigeria and has attained the age of thirty five (35) years and
(b) …
(2) A person shall be qualified for election under sub-section (1) of this
(a) Section if: He has been educated up to at least School Certificate level or its equivalent and
(b) He is a member of a political party and is sponsored by that party.
In its Judgment, the Tribunal reasoned and concluded as follows…
“…In the Petition at hand, the case of the Petitioners is that the 1st Respondent has abandoned, and defected from the 2nd Petitioner, that has been consistent in paragraphs 1, 4 and 15 of the Petition and even in the other paragraphs that were earlier struck out in the course of this Judgment. The petitioners in this petition led evidence on a constitutional issue which evidence is unpleaded and in contradiction to their case. This is worse than ambush and it will not be allowed. The attitude of the Petitioners is akin to desperate moves made by a drowning man to cling on to any piece of material in sight to remain afloat. Apparently, the piece of material held by the Petitioners in its Petition is not capable of sustaining their weight above the waters therefore they must go down. On the authority of Dingyadi & Ors v. Wamako & Ors (supra) cited by learned senior counsel to support his argument, it is our humble view that the case is not apposite to this Petition. Dingyadi’s case is predicated on double nomination contrary to Section 38 of the Electoral Act 2006, and this Petition is on unlawful nomination, unlawful substitution and non-sponsorship. Therefore Dingyadi’s case is distinguishable from this Petition and we find it inapplicable”.
The Appellants have come to this Court with a basket full of errors allegedly committed by the Tribunal, which they contend should decide this appeal in their favour. It was submitted that the constitutional provision does not need to be pleaded before evidence can be led or even relied upon at the stage of address, as the facts already pleaded are sufficient to anchor the provision of the law, citing Obijuru V. Ozims (1995) 2 NWLR (pt. 6) 167, Okoebor vs. Police council & 2 ors (2003) 12 NWLR (pt. 834) 444; that the Tribunal erred when it held that the evidence was not pleaded, citing Ezenba v. Ibeneme & Anor (2004) 14 NWLR (pt. 894) 617 and that contrary to what the Tribunal stated as their case, a careful study of the facts they pleaded show clearly that the case put forward by them is that –
“The 1st Respondent was a member of Peoples Democratic Party and that even though he claimed to have abandoned Peoples Democratic Party and defected to Accord Part that defection and abandonment was only purported. In other words it was false and not real. (Underlining theirs).
It was further submitted that a proper understanding of their case shows that the evidence elicited from the 1st Respondent as RW1 did not contradict their claim, rather it supported it in that while they alleged that the abandonment and defection was only purported i.e. false, unreal, untrue, only in pretence, the RW1 affirmed in his evidence categorically that he served in the Senate up to June, 2007 under the ticket of the PDP; that the effect of this admission against interest shows that contrary to the provision of Section 65 (2) (b) of the constitution, the 1st Respondent, continued to enjoy the proceeds of his membership of the PDP in the senate until the expiration of the second term which expired on 2nd June, 2007”: and that –
“Since dual membership of two political parties had been clearly portrayed by the 1st Respondent, he could not have said to have complied with Section 65 (2)(b)… It is in this light that Section 68 of the 1999 Constitutions… was introduced… to show that while the 1st Respondent as a member of Senate could change his political party he needed to demonstrate on the floor of the House that he had resigned from his membership of the earlier political party”.
It was further argued that since their case effective challenged the validity of the 1st Respondent’s defection to Accord party from PDP, the onus was on the 1st Respondent who admitted being a member of PDP to prove not only his new membership of Accord Party, but that he had validly left PDP. This Court was urged to resolve these issues in their favour, and hold that –
(i) The evidence of the 1st Respondent as RW1 showing that he enjoyed the proceeds of membership of PDP in the Senate until the 2nd June, 2007 was a relevant evidence in support of Ground F, which contends that the he was not qualified to contest the election in dispute.
(ii) That the evidence of the 1st Respondent as RW1 showing his membership of PDP up till 2nd June, 2007 did not contradict their case.
The 1st Respondent, however, submitted that the Appellants did not plead or adduce contrary evidence to establish that he did not satisfy the constitutional requirements in section 65; and that they pleaded that he defected from PDP and purportedly joined Accord party but did not plead any fact relating to the tenure or the vacation of a seat under Section 68.
It was further submitted that the issue of his tenure in the Senate is not one of the grounds of the Petition, and is “a strange bird in the entire proceedings or litigation by ambush embarked upon by the Appellants”; that no issue was joined as to whether his seat in the Senate became vacant by his joining the Accord Party, and the Tribunal was right to hold that evidence led on his tenure is at variance with the pleadings; and that a Tribunal is duty bound to reject any evidence which is contrary to pleadings or at variance with pleadings, citing Hashidu v. Goje (2003) 15 NWLR (pt.843) 352, National Investment & Property Ltd. v. Thompson Organisation Ltd. (1969) 1 NMLR 99; Emegokwe v. Okadigbo (1973) 4 sc 113.
The 1st Respondent further argued that their reliance on Section 68 (i) and (g) of the Constitution is unhelpful since that Section cannot be read to extinguish his right to contest for a political office or the right to peaceful Assembly and Association as guaranteed by section 40 of the constitution; that the joint effect of Sections 40 and 42 is that a person cannot be prevented from joining any political party recognized by INEC; and that his defection from PDP to Accord Party is not illegal and cannot vitiate his election, citing A.G. Federation v. Abubakar (2007) 10 NWLR (pt. 1041) 1.
The 1st Respondent, however, argued in the alternative that the fact that he was a Senator whose tenure was still subsisting on the ticket of PDP cannot affect his constitutional qualification for eligibility for senatorial election under Section 65 of the Constitution; that the fact that he left PDP for Accord Party while still maintaining his seat in the Senate does not disqualify him from contesting election under the said Section 65, citing Lawan v. Yama (2004) 9 NWLR (pt. 877) 117, Adebiyi v. Babatota (1993) 1 NWLR (Pt. 267) 1, and that he tendered exhibits which show that the political party under which he contested the election was the Accord party.
The Accord Party, who is the 2nd Respondent in this appeal, argued that the burden of proof rested on the Appellants to prove that the 1st Respondent was not validly nominated; that the onus rested on them to adduce credible evidence to prove that the 1st Respondent did not provide the 3rd Respondent with evidence that he was a member of Accord Party; that PW1 rendered incredibly contradictory and inconsistent evidence in a futile attempt to prove their allegation, and being aware that PW1’s evidence did not support their allegation, the Appellants abandoned their case, changed directions and argued in their written address that the 1st Respondent was not qualified because he was in breach of Sections 65, 66 and 68 (1)(g) of the constitution; and that the Appellants’ assertion that the 1st Respondent was still a member of the Accord Party at the time of the erection because he served out his term as a Senator up till 2nd June, 2009, is mere conjecture on an issue which does not arise from the pleadings, nor borne out by the evidence on record, and the Tribunal was right to so hold.
The 3rd Respondent [INEC] submitted that the 1st Respondent led compelling evidence to show he was a bona fide member of Accord Party, and the “Appellants in an attempt to sustain a dead Petition had clutched at straws by their deliberate beclouding and confused interpretations of the provisions of Sections G5 and 68 of the Constitution”; that they did not plead or raise the Issue of the 1st Respondent’s qualifications in line with Section 68, and the Respondents’ replies did not plead or raise the issue; that it is settled law that are parties bound by their pleadings, and evidence of facts not pleaded goes to no issue, citing Emegokwue v. Okadigbo (1973) 4 SC 113 and Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) 1, Ogunsakin V. Ajidara (200s) 6 NWLR (pt. 1082) 1, thus, that the finding of the Tribunal that the Appellants’ case was fraught with contradiction was well grounded.
The Appellants filed a “Reply on points of law to the 2nd and 3rd Respondents’ Briefs of Argument” wherein they submitted that contrary to the Respondents’ arguments, the crux of their case is that “the failure of the 1st Respondent to vacate his seat after his defection to Accord party but maintained same on the platform of PDP made him a member of two political parties at the same time”, which offends the provisions of Section 65 (2) (b) and 68 (1) (g) of the constitution, and is frowned on by the law, citing the same Lawan v. Yama (supra), referred to by the 1st Respondent. Furthermore, that the Constitution “does not allow double membership” and the 1st Respondent “cannot be said to have qualified to contest the election on the platform of Accord Party while his tenure as a senator was still subsisting on the ticket of PDP”, and that if the contrary is the case, it will amount to eating his cake and still have it, which the law also frowns at.
At this point, all I am faced with is a bucket full of wheat and a lot of chaff, and to sift out the chaff from the wheat, I propose to first of all sort out the issue of disqualification vis-a-vis tenure, and then distinguish this case from that of Dingyadi & ors v. Wamako & Ors (2004) 9 NWLR (pt. 877) 117.
Section 65 of the Constitution, which I set out earlier, deals with “Qualifications for Elections”, and the gist of its sub-section (2) (b) is that a person would be qualified for election as a member of the Senate if “he is a member of a political party and is sponsored by that party”.
Section 68 of the same constitution dealing with “Tenure of seat of Members”, provides –
(1) A member of the senate or of the House of Representatives in the House shall vacate his seat of which he is a member if –
(g) Being a person whose election to the House was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected”.
The question is – what is the connection between qualifications for elections to an office under section 65 and tenure of that office under Section 68?
“Qualification” is “the possession of qualities or properties (such as fitness or capacity) inherently or legally necessary to make one eligible for a position or office or to perform a public duty or function” – see Black’s Law Dictionary: 8th Ed. The literal meaning of “tenure” on the other hand is – “the term during which a thing is held, as an office” – see The New International Websters Comprehensive Dictionary: Encyclopedic Ed. As we can see, “qualification” and “tenure” have different attributes; while qualification has to do with whether a person is eligible to stand for election to an office, tenure has to do with how long that person stays in that office. To make the comparison clearer, Section 285 (1) of the Constitution provides that –
“There shall be established for the Federation one or more election Tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine Petitions as to whether –
(a) Any person has been validly elected as a Member of the National Assembly;
(b) The term of Office of any person under this Constitution has ceased;
(c) The seat of a Member of the Senate or a member of the House of Representative has become vacant; and
(d) A question or Petition brought before the election Tribunal has been properly or improperly brought.
In addition, the Electoral Act, 2006 provides in its Sections 140 and 145 –
140 (1) – No election and return at an election under this Act shall be questioned in any manner other than by a Petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent Tribunal or Court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a Party.
145 (1) – An election may be questioned on any of the following grounds…
(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 noncompliance with the provisions of this 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.
In this case, the election to the office of Senator for Delta-North Senatorial District held on the 29th of April, 2007, and the 1st Respondent who stood for the election under the banner of the Accord Party, was declared winner.
The Appellants were highly incensed because the 1st Respondent had defected from the 2nd Appellant [PDP] after he lost the primaries to the 1st Appellant, and they filed the Petition at the Tribunal alleging that the 1st Respondent was not qualified to contest the election on the ground that he was a member of PDP and only pretended to defect to the Accord party. Their Petition was therefore argued on the premise that the 1st Respondent was not qualified to contest the election, nothing more and nothing less.
Obviously, their complaint falls within Section 65 of the constitution, and has nothing to do with Section 68 dealing with his tenure as a senator.
In other words, the fact that the 1st Respondent was a senator of the Federal Republic of Nigeria as at the 29th of April, 2007, when the election to the office of Senator for Delta-North Senatorial District took place, has no bearing whatsoever on the Petition the Appellants filed at the Tribunal.
The question before the Tribunal was whether the 1st Respondent was qualified to stand for election as at that day of the 29th of April, 2001, and to answer that question, all the Tribunal had to do was determine whether the 1st Respondent was a member of a political party, and whether he was sponsored by that party to contest the said election. Obviously, the Tribunal had no business looking into the tenure of the 1st Respondent, which expired in June 2007, long after the election took place. The question of whether the 1st Respondent vacated his seat before the election was not an issue before the Tribunal, and it was therefore right to discountenance it.
In effect, the issue now is whether the 1st Respondent was a member of the Accord Party, and was sponsored by that party to contest the said election as its candidate. Stripping away the arguments relating to tenure, the Appellants’ contention is that he pretended to leave PDP for Accord Party, and was still a member of PDP when he contested the election.
They submitted that “although there is no issue of double nomination in the instant appeal it is elementary that the ratio in Wamako’s case (supra) is predicated on dual membership of two political parties which gave rise to double nomination”, and that “dual membership of two political parties is a valid ground upon which a qualification of candidate to contest for an election can be questioned under Section 65 of the 1999 Constitution”.
The 1st Respondent, however, argued that Wamako’s case is distinguishable from this one as the 1st Respondent in that case allowed himself to be nominated twice by two political parties for the same election, thus, the principles in that case are based on double nominations under Section 38 of the Electoral Act, which are separate and distinct from qualification which is the case canvassed by the Appellants in this appeal.
The 2nd Respondent submitted that the Appellants admitted in their brief that there is no issue of double nomination in this appeal; that they cited Wamako’s case out of con, and it is inapplicable to this case.
The 3rd Respondent also argued that the Tribunal’s finding that the ratio in Wamako’s case was inapplicable to the Petition cannot be faulted; that the gravamen of the decision in that case was double nomination of one and the same person by two different political parties, which is not the position in this Petition; that the Appellants’ case is that the 1st Respondent was not qualified to contest the election; and that they never claimed that PDP also nominated and-sponsored the 1st Respondent for the election.
Now, pleadings play an important role in the litigation process, including election matters. The Petition is the originating process therein, and it covers the function of a Statement of Claim in an ordinary civil action. The Respondent’s pleading is the Reply to the Petition, which is required to traverse the allegations in the Petition denied by the Respondent.
In this case, the Appellants averred in paragraph 1 of their petition that –
The 1st Respondent was a member of the 2nd Petitioner Political Party, that is, the PDP until sometime in February 2007, when he abandoned and defected from the party purportedly join the 2nd Respondent Political Party, that is, the AD”.
The averment in paragraph 1 says it all, and seals the case against them. They stated in no uncertain terms that the 1st Respondent was a member of the 2nd Petitioner Political Party {PDP} until sometime in February 2007, when he abandoned and defected from the party to purportedly join the 2nd Respondent Political Party [Accord Party]. As I said earlier, we are only concerned with the standing of the 1st Respondent on the 29th of April, 2007, and here are the Appellants saying categorically that the 1st Respondent left the PDP in February 2007. They further averred in paragraph 4 that –
“That the 1st Respondent decided to pursue his future political activities by abandoning, defecting and leaving the 2nd Petitioner political party whereupon he purported joined the 2nd Respondent Political Party”.
In their own words, the 1st Respondent left PDP sometime in February 2007, about two months before the election in question, and decided to pursue his future political activities by purportedly joining the Accord party”.
There is no question that the facts of this case are a far cry from the facts of the case in Dingyadi & ors v. Wamako &ors (supra), where the 1st Respondent therein was nominated by two political parties for the same office of the Governorship in Sokoto state, and this Court held as follows –
The defence has been based on the ground that the issue of qualification is distinct from that of nomination. That is true, but by Section 38 of the Electoral Act, 2006 and Section 187 (1) of the Constitution… and in view of the evidence of the Appellants which remains largely undenied, can it be said that the 1st Respondent was qualified to contest the election of 14th April, 2007? The answer is certainly in the negative…. The issue of multiple nominations touches on the qualification of a candidate to contest an election under the Electoral Act. And it is justiciable before an election Tribunal”.
In this case, the Appellants are not saying that the 1st Respondent was nominated or sponsored by PDP. They admit that he left PDP but allege that his nomination and sponsorship by Accord party is fake and not real.
This brings us to the Appellants’ submission challenged that having effectively the validity of his defection to Accord party, the onus was on the 1st Respondent, who admitted being a member of PDP to prove not only his new membership of Accord party, but that he had also validly left the PDP. Section 135 (1) of the Evidence Act provides in no uncertain terms that –
“whoever desires any Court to give Judgment as to any legal right … dependent on the existence of facts which he asserts must prove that those facts exist”.
The simple and down to earth transaction is “he who asserts must prove”- see Kalu V. Uzor (2006) 8 NWLR (pt. 981) 66. In other words, it is the party that asserts the existence of a particular fact that must prove that fact. In this case, the Appellants’ allegations boils down to an assertion that the 1st Respondent was a fake candidate of the Accord party at the election, and apart from the words “purported” and “purportedly” paragraphs of mentioned in the their Petition, there are no averments or evidence adduced to show how and why the 1st Respondent became labeled a fake candidate, which is a very serious allegation indeed, and not one to be treated lightly.
In effect, the Tribunal was right to hold that they did not prove the allegations made against the 1st Respondent, and to dismiss the petition. The end result is that the appeal totally lacks merit, and it is also dismissed. The 1st and 2nd Respondents are awarded costs assessed at N30, 000.00.
ALI ABUBAKAR BABANDI GUMEL J.C.A: I have had the privilege of reading in draft the lead judgment of my learned, AUGIE, J.C.A and I fully agree with a, her reasonings and conclusion. I also would dismiss this appear for totally being devoid of any merit.
I hereby order that the petition of the Appellant be dismissed. I abide by the order for costs as assessed by my learned brother in the lead judgment.
CHIOMA EGONDU NWOSU-IHEME (Ph.D) (J.C.A): I had a preview of the lead judgment just delivered by my learned brother, AMINA ADAMU AUGIE, J.C.A. I agree entirely with the reasoning and conclusion. However, I wish to add a few comments.
The fulcrum of the Appellants’ case at the lower tribunal was that the 1st Respondent while remaining a member of the and Appellant/Political Party (PDP) contested the election under the platform of another political party namely the and Respondent in this appeal (the Accord Party), and concluded by saying that the election of the 1st Respondent was void by reason of the fact that he was not qualified among other reasons in the petition.
In my view this is the most crucial aspect of this appeal, but the pleading in the petition does not appear to justify this position. It may well be that at one time the 1st Respondent was a member of the 2nd Appellant (PDP), but the fact pleaded in paragraphs 1, 2 and 4 of the petition appear to be singing a different song, and therefore make the assertion difficult to believe. (See pages 2 and 3 of the records).
Those paragraphs read:
“(1) The 1st Respondent was a member of the 2nd Petitioner/Political Party ie the Peoples Democratic Party (PDP) until sometime in February, 2007 when he abandoned and defected from join the party to purportedly join the 2nd Respondent political party ie the Accord Party ie the Accord Party.
(2) That while being a member of the 2nd petitioner/political party, the 1st Respondent had contested and lost the Primaries of the 2nd petitioner for the nomination to contest for the office of Senator for Delta North senatorial District…
(4) That the 1st Respondent decided pursue his future political activities by abandoning, defecting and leaving the 2nd Petitioner/Political Party…”
Now the ordinary Dictionary meaning of the words ABANDON, DEFECT AND LEAVE are;
ABANDON Means to relinquish, to give up something completely or forever; to forsake, desert etc.
DEFECT – Means to forsake a party, cause, etc, especially so as to join the oppositions. Abandonment of loyalty,
LEAVE – To leave means to go away or depart. See WEBSTER’S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE second college Edition, pages 2, 369, and 804.
The evidence of the Appellant was along the foregoing line of his pleading. What these mean is that at the time of the election and even before then, the 1st Respondent in this Appeal was no longer a member of the 2nd Appellant political party (PDP). It is note worthy that the 1st Respondent tendered his membership card in his evidence to show his membership of the 2nd Respondent, the Respondent, the Accord Party.
The Appellants did not challenge the 1st Respondent’s membership of the Accord Party having themselves pleaded that fact in paragraphs 1 and 4 in their pleading already reproduced herein.
Section 40 of the constitution of the Federal Republic of Nigeria guarantees freedom of association, and freedom of association includes freedom not to associate, freedom to terminate an existing association and embrace a new one. Therefore having terminated his association with the second Appellant (PDP) and embraced a new association with the 2nd Respondent (Accord party), the 1st Respondent was merely exercising his constitutional right under Section 40 of the Constitution.
It is worthy of note that the Appellants did not lead any evidence oral or documentary to show that the 1st Respondent still remained a member of the 2nd Appellant (PDP). Therefore, having discharged the primary onus on him by tendering his membership card, the evidential burden or onus shifted to the Appellants to show that he was still a member of the second Appellant (PDP), a burden which they did not discharge.
By section 65(2)(b) of the 1999 constitution of the Federal Republic of Nigeria, a person shall be qualified for election into the senate if he is a member of a Political party and sponsored by that party. Thus having established his membership of the 2nd Respondent (Accord Party) and the Appellants having acknowledged that he had abandoned, defected and left their Party, the 1st Respondent is entitled to retain his seat as a Senator representing Delta North Senatorial District of Delta State on the basis of the votes he garnered in that election. The lower tribunal was therefore right in dismissing the petition. For the above reasons and the fuller reasons given by my learned brother, I too will dismiss the appeal and abide by the order as to costs.
Appearances
James Ocholi (SAN) with A.P.A. Ogefere, Esq.
F.E. Akoko, Esq. and M.A. Ifeta, Esq.For Appellant
AND
I.E. Imadegbelo (SAN) with A. Alofoje, Esq. and V. Akhere, Esq
E. Ohwovoriole, Esq.
O. Ovrawah, Esq. with M.N. Aigbe, Esq.,
U.S. Amadi, Esq.For Respondent
