ABDULLAHI AHMAN & ANOR. V. ABUBAKAR TANKO AYUBA MAJ. – GEN. & ORS.
(2018)LCN/12309(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of December, 2008
CA/K/EP/NA/46/07
RATIO
COURT AND PROCEDURE: INJUNCTIVE RELIEF
“It is trite that injunctive relief cannot be granted or enforced in respect of an already completed act.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
COURT AND PROCEDURE: DECISION OF THE COURT
“The law is trite that an order or decision of a trial court is truly binding on the parties to the case. So long as the order remains in force and enforceable, the law compels the parties to comply with and obey it pending its being set aside either by the trial court itself upon due application or by an appellate court on appeal. See Amaechi V. INEC (2008) 5 N.W.L.R. (Pt.1080) 227/366…What is the effect of the death of a party to an action or court order. Does the action or court order abates or survives the death of such a party? Question can be further asked whether the party can be substituted and the interests of the deceased capable of being transmitted or transferred to his heirs or personal representatives?” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
INTERPRETATION: RULES OF INTERPRETATION
“It is trite that the primary rule of interpretation as applicable to statues and documents requires that words and phrases must be given their natural meaning without extrapolations. Such words must not be construed in a manner which is contrary to their meanings. The duty of the court is to expound the law as it is and not expand it as it ought to be, regardless of the result or outcome and as long as it does not entail or lead to absurdity. Effect must be given to straightforward literal meanings of words used in statutes and documents. See Ugwu V. Ararume (2007) 12 N.W.L.R. (Pt,1048) 367/498.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
1. ABDULLAHI AHMAN
2. DEMOCRATIC PEOPLES PARTY (PDP) Appellant(s)
AND
1. ABUBAKAR TANKO AYUBA MAJ. – GEN.
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION
4. RESIDENT ELECTORAL COMMISSIONE KEBBI STATE
5. SENATORIAL DISTRICT COLLATION/RETURNING OFFICER, KEBBI SOUTH SENATORIAL DISTRICT Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the National Assembly, Governorship and Legislative Houses Election Petition Tribunal, sitting at Birnin – Kebbi delivered on 10th October, 2007. The petition numbered KB/EPT/SEN/3/2007 was consolidated on 12th July, 2007 with petitions numbered KB/EPT/SEN/1/2007 and KB/EPT/SEN/5/2007. It was presented on 21st May, 2007 by Abdullahi Ahman and Democratic Peoples party (DPP) as the 1st and 2nd Petitioners. The Respondents were: (1) Abubakar Tanko Ayuba Maj.- Gen. (2) Peoples Democratic Party (PDP), (3) Independent National Electoral Commission (INEC), (4) Resident Electoral Commissioner, Kebbi State and (5) Returning/Collation Officer, Kebbi South Senatorial District The said Abdullahi Ahman alongside other candidates contested the election held on 21st April, 2007 for the elective office of Senator representing Kebbi South Senatorial District in the Senate of Federal Republic of Nigeria.
After the conduct of the election, results declared showed that Aliyu Bala Abdulkadir (PPA) scored 12 votes, Muhammed Dantani Kanya (AC) 1,477 votes, Abdullahi Ahman (DPP) 13,828 votes Mohammed Bello Usman (ANPP) 53,775 votes and Abubakar Tanko Ayuba (Maj. – Gen.) (PDP) 185,191 votes. Going by these results, INEC and its officers charged with the conduct of the election for the Senatorial District, returned Abubakar Tanko Ayuba Maj. – Gen. as the duly elected Senator for Kebbi South Senatorial District of Kebbi State.
Being dissatisfied with the conduct of the election and the aforesaid return, the aforedescribed petition was accordingly filed with the following grounds:
(i) That the 1st Respondent at the time of the election was not qualified to contest the election.
(ii) That the 1st Respondent was not validly nominated to contest election and was fielded as a candidate in flagrant disregard of a subsisting order of Federal High Court, Kaduna.
(iii) That the election was invalid by reason of non compliance with the provisions of the Electoral Act, 2006. (Page 3 of the record.)
The petition was grounded on Section 145(1)(a), (b) and (d) of the Electoral Act, 2006. It was alleged in the main therein and in addition to other acts of non-compliance with the Electoral Act, 2006 that by virtue of a letter dated 5th February, 2007, the 2nd Respondent in the spirit of a purported merger, sealed on 8th February, 2007, substituted one Maj.-Gen. Musa Bamaiyi (Rtd.) with the 1st Respondent. That the said Maj. – Gen. Musa Bamaiyi (Retd.) successfully challenged his substitution in Suit No.FHC/KD/CS/36/2007 with a favourable verdict delivered by the Federal High Court, Kaduna on 3rd April, 2007. It was further pleaded in the petition that the 1st Respondent who did not serve a notice of withdrawal, was a member and senatorial candidate of ANPP until 9th April, 2007.
The petition was accompanied by three written statements of witnesses on oath and list of documents to be relied upon at the hearing by the Petitioners. Upon being served with the petition, the 1st and 2nd Respondents caused a conditional memorandum of appearance to be entered on their behalf, together with a notice of preliminary objection – all dated and filed on 28th May, 2007. Thereafter, their reply to the petition accompanied by the list of documents and three written statements of witnesses on oath was dated 4th June, 2007 and filed on 11th June, 2007. (Pages 49-63 of the record.) Initially, the 3rd – 5th Respondents’ joint reply was dated and filed on 12th June, 2007. (Pages 80-83 of the record.) However, on 23rd July, 2007 and upon due application, the Tribunal granted leave to the 3rd-5th Respondents to withdraw their previously filed reply and substitute the same with an amended reply dated and filed on 14th July, 2007 with list of documents to be relied upon and the written statement on oath of their sole witness. (Pages 136- 169 and 398-402 of the record.) The Petitioners filed their reply to the aforesaid 3rd – 5th Respondents reply on 27th July, 2007. (Pages 199-201 of the record.)
The preliminary objection raised by the 1st and 2nd Respondents challenging the competence of the petition and jurisdiction of the Tribunal was rolled over into the substantive matter. At the conclusion of the pre-trial sessions, the Tribunal in its final report, formulated three issues for determination in the petition. They are:-
(1) Whether or not having regard to the basis of and facts in support of the grounds of the petition, or any of them, the Tribunal has jurisdiction or is competent to entertain this petition.
(2) Whether within the intendment of section 145(1)(a) of the Electoral Act and Section 65(2)(b) of the 1999 Constitution, the 1st Respondent was qualified to contest election into Kebbi South Senatorial District held on 21st August, 2007 (sic)
(3.) Whether or not the infractions of the Electoral Act, 2006 alleged (if established as required by law) constitute substantial non-compliance with the Electoral Act,2006. (Page 205 of the record.)
The reliefs/declarations sought by the Petitioners upon determination of the petition are summarized thus:
(i) that election or return of 1st Respondent was undue,
(ii) non-qualification of 1stRespondent to contest election under the flag of 2nd Respondent.
(iii) substantial non-compliance with the Electoral Act, 2006.
(iv) invalid nomination of 1st Respondent.
(v) conduct of fresh election.
At the hearing of the petition, it was agreed by all the parties that written statements of witnesses on oath be deemed adopted without recourse being had to cross-examination. Additionally, that pleaded documents are to be tendered from the Bar. Pursuant thereto, the following documents were tendered from the Bar, admitted and marked as follows:
1. Exhibit P1 – Merger agreement between ANPP Kebbi Chapter and PDP Kebbi Chapter dated 8th February, 2007.
2. Exhibit P2 – Letter dated 5th February, 2007 entitled “Substitution PDP candidates for Kebbi South Senatorial District.”
3. Exhibit P3 – Form EC4B(v) Form for Nomination of member of Senate.
4. Exhibit P4 – Form CF 001, Affidavit in support of personal particulars of persons seeking election into the office/membership of Senate.
5. Exhibit P5 – An interlocutory order of the Federal High Court, sitting at Kaduna in Suit No. FHC/KD/CS/36/2007 dated 22nd February, 2007 between Maj. – Gen. Musa Bamaiyi (Retd.) Vs. P.D.P. and 4 Others.
6. Exhibit P6 – Judgment of the Federal High Court, Kaduna in Suit No.FHC/KD/CS/36/2007 between Maj. – Gen. Musa Bamaiyi (Retd.) Vs. P.D.P. and 4 Others.
7. Exhibit P7 – Proof of service of Exhibit P6.
8. Exhibit P8 – Enrolled Order in Suit No. FHC/KD/CS/36/07.
9. Exhibit P9 – INEC Guidelines and Regulations.
10. Exhibit P10 – Letter dated 19th February, 2007 written by Chairman of P.D.P. to INEC.
11. Exhibit P11 – Form CF 004 (A).
12. Exhibit P12 – Certificate of Death.
13. Exhibit RI – Notice of Appeal dated 10th April, 2007.
14. Exhibit R2 – Letter dated 18th February, 2007 entitled ‘Replacement of candidates for 2007 election under A.N.P.P.” (Pages 412 and 413,415,414 and 416 of the record.)
The Tribunal duly considered the documentary evidence placed before it, coupled with the submissions made by the learned counsel for each of the parties thereon. The Tribunal struck out ground two of the petition for being incompetent and on the basis that “it is not cognizable under Section 145 of the Electoral Act, 2006. It then held thus:
No matter the interpretation placed on Sections 34, 36 and 38 of the Electoral Act, they remain breaches of the Electoral Act … even where there is transgression of sections 34, 36 and 38 of the Electoral Act, 2006 that cannot form the basis of a complaint under Section 145(1)(a) of Electoral Act, 2006.
(Pages 481 and 485 of the record.)
It further found that the Petitioners did not plead the fact of cogency and unverifiability of the reason for the substitution. At the end of it all, it refused to grant the petition for the reasons stated in its judgment and the petition was accordingly dismissed.
The Petitioners hereinafter referred to as the Appellants were dissatisfied with the Tribunal’s decision. They appealed to this Court vide their notice and grounds of appeal dated and filed on 30th October, 2007 with five grounds of appeal. In the Appellants brief presented by Alhaji Abdullahi Ibrahim, CON, SAN, Rickey Tarfa, SAN, Adetunji Oyeyipo, SAN, Oladipo Tolani Esq., AJ. Owonikoko Esq., O. Jolaawo Esq., Rotimi Oguneso Esq., Yemi Pitan Esq. and A.C. Aderemi Esq., two issues were distilled from the said grounds of appeal for determination before us. They are:
(1) WHETHER having regard to the combined effect of Sections 34, 36 and 38 of the Electoral Act, 2006, the 1st Respondent, “was at time of the election not qualified to contest the election” held on 215t of April, 2007 into the Kebbi South Senatorial District of the Federal Republic of Nigeria (Distilled from Grounds 1, 2, and 3).
(2) Whether or not in view of the facts before the trial Tribunal, the Appellants proved their case and whether the fact that ANPP fielded another candidate for the election can validate the invalid withdrawal of the 1st Respondent as ANPP candidate. (Distilled from Grounds 4 and 5.)
By leave of this court granted on 3rd April, 2008, the 1st and 2nd Respondents’ brief dated 6th March, 2008 and settled by Yahaya Mahmood Esq., was deemed duly filed and served. Two issues were similarly formulated therein. They are reproduced below:-
(1) Whether having regard to the combined effect of Sections 34, 36 and 38 of the Electoral Act, 2006 the 1st Respondent was at the time of the election not qualified to contest the election. (Grounds 1, 2, and 3.)
(2) Whether or not in view of the facts before the trial Tribunal, the Appellants proved their case or whether the fact that ANPP fielded another candidate for the election can validate the invalid withdrawal of the 1st Respondent as ANPP candidate. (Grounds 4 and 5).
Again, by leave of this Court granted on 3rd April, 2008, the 3rd – 5th Respondents’ brief dated 6th March, 2008 and prepared by Mariam S. Shagari Esq., was deemed properly filed and served. Four issues were formulated therein. They are reproduced thus:
(i) Whether the Tribunal below was right in striking out ground 2 of the petition before it on ground that it relates to pre-election matters not within its jurisdiction.(Ground 1.)
(ii) Whether the Tribunal below misconstrued the case of the appellants before it and, if so whether it occasioned any miscarriage of justice. (Ground 2.)
(iii) Whether the Tribunal below was right in holding that the appellants did not raise the cogency and verifiability of the reason for substitution of the 1st Respondent in their petition and that in any event that transgression of the provisions of Sections 34, 36 and 38 are only cognizable as grounds of a petition under Section 145(b) of the Electoral Act, 2006. (Ground 3.)
(iv) Whether the Tribunal below properly evaluated the evidence before it and was right in dismissing the grounds of the petition alleging non-compliance with the Electoral Act and other electoral malpractices. (Grounds 4 and 5.)
At the hearing of this appeal, Oladipo Tolani Esq., Yahaya Mahmood Esq and Ahmed Mohammed Esq., learned counsel for the Appellants, the 1st and 2nd Respondents and the 3rd – 5th Respondents respectively, adopted their aforedescribed briefs of argument. They also canvassed oral submissions in amplification thereon. The learned counsel for the Appellants contended in his oral submissions that Exhibits P6, P7 and P8 – all showed that the candidature of the 1st Respondent was voided by the judgment of the Federal High Court, Kaduna, delivered on 3rd April, 2007. We were referred to the Supreme Court decision of Amaechi V. INEC and 2 Others (2008) 1 S.C. (Pt.1) 36/132 Lines 19 – 29. In his oral response before us, Yahaya Mahmood Esq., learned counsel for the 1st and 2nd Respondents countered that the facts of the case of Amaechi (supra) relied upon by the Appellants’ counsel was not on all fours with the instant one. He argued that in Ameachi’s case, the judgment creditor so to say has a subsisting judgment and was also alive at the time the election was conducted by the 3rd Respondent herein. On the other hand and in the instant case, the sole beneficiary of the judgment which is not transferable died before the date of the election and was subsequently substituted with the 1st Respondent by the 2nd Respondent.
While the issues framed in the brief filed by the 3rd – 5th Respondents seem verbose and unwieldy, the difference between the ones formulated by the Appellants and the 1st and 2nd Respondents can be likened to that of six and half a dozen – virtually none. I will therefore in the determination of this appeal, adopt and have recourse to the issues formulated in the Appellants’ brief.
Before delving into the exercise of resolving the issues, I need to recapitulate certain undisputed obvious and material facts in this case. Here they are: One Maj.-Gen. Musa Bamaiyi (Retd.) was the Plaintiff in Suit NO.FHC/KD/CS/36/07 – an action filed before the Federal High Court, Kaduna. It was pleaded therein that during the primary election conducted by his party, he emerged as the PDP’s candidate for Kebbi South Senatorial District. Pursuant thereto, the PDP forwarded his name to INEC as the party’s candidate. Thereafter, INEC accordingly screened cleared and published his name as PDP’s candidate for the said election. Howbeit, by virtue of a letter dated 5th February, 2007, the 2nd Respondent herein informed the 3rd Respondent of the “substitution or the earlier named candidate “with the 1st Respondent. INEC accordingly effected the substitution. Maj.-Gen. Musa Bamaiyi (Retd.) promptly challenged his substitution in the aforedescribed suit. He also sought injunctive reliefs in his bid to stop the PDP and INEC from substituting his name as the party’s candidate. Thus, pursuant to an ex-parte application dated and filed on 19th February, 2007, the Federal High Court, Kaduna on 22nd February, 2007 made an order, restraining INEC from substituting or removing the name of Maj .-Gen. Musa Bamaiyi (Retd.) as the PDP’s candidate for Kebbi South Senatorial District in the then forthcoming 2007 general election. The said Federal High Court’s interlocutory order was duly served on the 2nd and 3rd Respondents herein. The latter was served on 23rd February, 2007, while the former was served on 28th February, 2007.
Thereafter, the Federal High Court, Kaduna delivered its judgment on 3rd April, 2007. It granted the reliefs sought by Maj. – Gen. Musa Bamaiyi (Retd.) and declared him as “the lawful Senatorial candidate for Kebbi South Senatorial District in the 2007 general election.” Consequential orders were also made in respect thereof. On 19th April, 2007, the 2nd Respondent herein alongside others, filed their notice of appeal against the said judgment of the Federal High Court, Kaduna. Finally, alas and unfortunately, on 17th April, 2007, precisely four days to the date of the election scheduled for 21st April, 2007, Maj.-Gen. Musa Bamaiyi (Retd.) died. It was also pleaded by the 3rd – 5th Respondents in their amended reply to the petition, that subsequently thereafter, the 2nd Respondent sought for and replaced the deceased Maj.-Gen. Musa Bamaiyi (Retd.) with the 1st Respondent herein.
On the first issue, it is submitted in the Appellants brief that an invalid nomination to contest an election is a disqualifying ground fit for cognizance under S.145(1)(a) of the Electoral Act, 2006 and that the holding by the Tribunal that such an infraction amounts to non-compliance with the Act which is cognizable under S.145(1)(b) of the same is a serious error and misinterpretation which has occasioned a miscarriage of justice and ought to be reversed by this Court. Additionally, that valid nomination connotes non-qualification to contest an election even where the candidate is otherwise qualified. Reliance was placed on Anazodo V. Audu (1999) 4 N.W.L.R. (Pt.600) 530/544.
In another submission, the Appellants maintained that the documentary evidence tendered before the Tribunal uncontrovertibly proved that the 1st Respondent had earlier been nominated and sponsored by the ANPP and that as at the time of his nomination and sponsorship by the 2nd Respondent, he has not validly withdrawn his candidature before his alleged substitution vide a letter purportedly written on 5th February, 2007- Exhibit P2, thus a case of double nomination has been made out. Appellants further argued that it was not even averred in the pleadings of the 1st and 2nd Respondents that the 1st Respondent gave any notice of withdrawal to ANPP, to which extent the said pleadings did not effectively counter that of the Appellants in any material particular. Furthermore, that it was incumbent on the Respondents to specifically respond to such an averment rather than make a general traverse. That there was no pleading on which the Tribunal could have lawfully found for the Respondents. Host of authorities which include Dikwa (1994) 5 NWLR (Pt.343) 214, Iluyomade V. Ogunshakin (2001) 8 NWLR (Pt.716) 559/569 and Jacobson Eng. Ltd. V. U.B.A. Ltd. (1993) 3 NWLR (Pt.283) 586 were cited in support of these submissions.
Citing the case of Military Administrator of Benue State V. Ulegede (2001) 17 NWLR (Pt.741) 194/226 the learned counsel for the Appellants reiterated the point being made that if nomination of a candidate to contest is invalid the fact of meeting constitutional requirements for holding the elective office cannot validate the invalid nomination. It was then submitted that where there are infractions of the Electoral Act, 2006 which included improper withdrawal of a candidate, invalid nomination and double nomination, the affected candidate would as “at the time of the election not qualified to contest the election.” Furthermore, that the relevant date for consideration in determining issue of qualification is the day of nomination for election and not the actual date or day of conduct of the election. Thus, according to Appellants learned counsel, the Tribunal was wrong to have limited its consideration regarding non-qualification of 1st Respondent to only provisions of Sections 65 and 66 of the 1999 Constitution and the actual day of election as the determinant points. That the principle of substantial compliance in S.146 of the Electoral Act, 2006 is inapplicable to the issue of invalid nomination and substitution. In conclusion, we were urged to resolve the first issue in favour of the Appellants and allow the appeal.
The learned counsel for the 1st and 2nd Respondents in their response countered that the entire case presented before the Tribunal by the Appellants was not a challenge to the qualification of the 1st Respondent under S.65 of the 1999 Constitution by virtue of S.145(1)(a) of the Electoral Act, 2006, but an allegation of double nomination and wrongful substitution. It was contended that the 1st Respondent was not otherwise disqualified under any constitutional provisions. That the meaning and purport of S.145(1)(a) of the Electoral Act, 2006 is different from that of sub-paragraph (b) of the same.
It was opined that while the former deals with stipulated constitutional qualification provisions, the latter deals with
infractions of the Electoral Act, 2006, which even when proved, will be relevant for nullification of election only if they are substantial and affect the result of the election in an adverse manner. Furthermore, that the material facts in these directions must be pleaded and supported by evidence; which in the instant case were not available or proved. Citing Amaechi v. INEC and Others (2008) Vol. 1 MJSC 1, it was contended by the learned counsel for the 1st and 2nd Respondents that the contest for elective offices is between political parties with the consequence that it is only the substituted candidate who can challenge his substitution before the regular courts. Candidates of other political parties contesting the election are disallowed from mounting such a challenge or contest. That they have no locus standi to do so. Additionally, that in the case of death of a candidate and substitution arising therefrom, the requirement regarding cogent and verifiable reasons for the substitution is an exception thereto. It was argued that in the instant case, where the candidate cleared by the Federal High Court died on 17th April, 2007, the provision of S.34 of the Electoral Act, 2006 is clearly inapplicable.
The learned counsel for the 3rd – 5th Respondents submitted in the main on the this issue that alleged breaches of Sections 34, 36, and 38 of the Electoral Act, 2006 are issues deliberately left by law to the regular High Courts and the Federal High Court. Hence, issue of validity of nomination or substitution is not within the contemplation of Sections 65 and 66 and 285(1)(a) of the 1999 Constitution and 140(1) and 145(1) of the Electoral Ac t, 2006 and is thus incompetent as a ground of challenge in an election petition. That any person who is aggrieved by the information supplied on oath by a candidate, nomination or substitution at an election is obliged to approach the regular State High Courts or the Federal High Court to challenge such infractions and seek for nullification of such a candidate’s nomination. It was contended that S.32(4) of the Electoral Act, 2006 provides specific avenue for an aggrieved person to challenge any false information given by a candidate and by so doing seek to void the nomination of such a candidate.
Additionally, that the Appellants obviously slept over their rights when they failed to utilize the said opportunity which becomes unavailable after the conduct of poll, as the provisions of the law do not admit invalidity of nomination or substitution as a ground of qualification upon which the return of a successful candidate can be challenged before an election tribunal after the conduct of an election. Thus, according to the learned counsel for the 3rd – 5th Respondents, the Tribunal was right when it held that ground two of the petition relates to a pre-election matter which is cognizable before the regular courts. Cases of Ararume V. INEC (2007) 9 NWLR (Pt.1038) 127, Jang V. Dariye (2004) FWLR 194/412 & 432, Tsoho V. Yahaya (1999) 4 NWLR (Pt.600) 657/662 and Doukpolagha V. George & Others (1992) 4 NWLR (Pt.236) 444/458 were cited in support of the submission being made. We were urged in conclusion to resolve the issue against the Appellants and dismiss the appeal.
My duty on issue number one is simple. It is to answer the question: whether the 1st Respondent was validly nominated for the election in the given circumstances and facts of this case. Let me recapitulate that the grounds of the Appellants challenge to the eligibility of the 1st Respondent to contest the said election are:
(i) that the 1st Respondent was improperly nominated or substituted as 2nd Respondent’s candidate.
(ii) that the substitution of 1st Respondent was made pursuant to an unlawful merger agreement between the Kebbi Chapters of ANPP and PDP.
(iii) that the substitution/presentation of 1st Respondent was done in defiance and disobedience of a subsisting order/judgment of the Federal High Court, Kaduna and contravention of INEC guidelines and regulations.
What is momentous regarding this issue is the standpoint of the Appellants that upon a communal reading of Sections 32, 34, 36, 38 40 and 41 of the Electoral Act, 2006, invalid nomination of a candidate is cognizable as a ground of challenge in an election petition under Section 145(1)(a) of the Act. Additionally, there is the forceful contention by the Appellants that the 1st Respondent was fielded as a candidate in the election in question, in defiance or flagrant disobedience of a valid and subsisting order of the Federal High Court, Kaduna with the resultant effect that the said candidature ought to have been nullified on the ground that he was at the date of election not qualified to contest the election in question.
I now ask: Could it be said and rightly too, that the 1st Respondent contested the election in absolute defiance of a subsisting court order or judgment. Let’s see which way the dice falls. Interlocutory order of restraint was made by the Federal High Court, Kaduna, in Suit No. FHC/KD/CS/36/2007- Gen. Musa Bamaiyi (Retd.) V. P.D.P. and 4 Others, on 22nd February, 2007 – Exhibit P5. 2nd Respondent substituted Maj.- Gen. Musa Bamaiyi (Retd.) with the 1st Respondent vide its letter dated 5th February, 2007 – Exhibit P2. Judgment was subsequently delivered in the suit on 3rd April, 2007 – Exhibit P6. Two weeks later, on 17th April, 2007 to be precise, the Plaintiff, Maj.- Gen. Musa Bamaiyi (Retd.) died – Exhibit P12. This happened exactly four days to the election which was held on 21st April, 2007. For one, the substitution conveyed by Exhibit P2 preceded the interlocutory order of restraint contained in Exhibit P5.
It is trite that injunctive relief cannot be granted or enforced in respect of an already completed act. However, in this case, Exhibit P6 hit the nail squarely on the head. So, what next? The 3rd – 5th Respondents pleaded in paragraph 3 and 4 of their amended reply that the impediment which Exhibit P6 constituted to the nomination of 1st Respondent had been overtaken by the death of the said previously nominated candidate and upon being satisfied with the validity of the substitution/replacement presented by the 2nd Respondent, it proceeded with the election as scheduled. In the adopted written statement on oath of one Ahmed Mohammed Esq. the 3rd Respondent’s legal officer attached to Kebbi State, he stated this much:
4. That one Major – Gen. Musa Bamaiyi (R.I.P.) who was previously nominated by the 2nd Respondent as its candidate to contest the said election and same office died on 17/4/07, a few days to the said election and the 1st Respondent was his replacement for the 2nd Respondent. (P.156 of the record.)
Appellants pleaded in paragraph 3 of their reply to 3rd – 5th Respondents reply thus:
3. Petitioners aver in response to paragraph 4 of the 3rd – 5th Respondents reply that the said nomination of the first respondent was on 5th February, 2007 which nomination was invalidated by a lawful order of the Federal High Court and the presentation of the 1st Respondent as a candidate in the Senatorial election was in deliberate and direct violation of a subsisting judgment of the Federal High Court, sitting at Kaduna in suit NO.FHC/KD/CS/36/07 and also in contravention of the applicable provisions of the Electoral Act, 2006 and INEC guidelines for withdrawal and/or substitution of candidates at the election, made pursuant to the Act.
The law is trite that an order or decision of a trial court is truly binding on the parties to the case. So long as the order remains in force and enforceable, the law compels the parties to comply with and obey it pending its being set aside either by the trial court itself upon due application or by an appellate court on appeal. See Amaechi V. INEC (2008) 5 N.W.L.R. (Pt.1080) 227/366.
In the instant case, the sole beneficiary of the judgment in Exhibit P6 passed on. He died on 17th April, 2007 as evidenced by Exhibit P12. He died four days to the election in question described by some diehards as a “do or die” affair – a matter of life or death. The germane question to be asked in the resolution of this issue is:
What is the effect of the death of a party to an action or court order. Does the action or court order abates or survives the death of such a party? Question can be further asked whether the party can be substituted and the interests of the deceased capable of being transmitted or transferred to his heirs or personal representatives?
It is apparent that the claim in Suit NO.FHC/KD/CS/36/07 is personal and peculiar to the sole beneficiary of Exhibit P6 – that is Late Maj.-Gen. Musa Bamaiyi (Retd.) The applicable maxim is rendered thus: actio personalis moritur cum persona, death terminates the cause of action or the interests of the party in a personal action. Hence, an action in personam engenders a decision in personam which determines the jurat relation of persons to one another. See Idris V. A.N.P.P. (2008) 8 N.W.L.R. (Pt. 1088) 1/120 para. H.With the subsequent development in the instant case, enforcement of the orders of Federal High Court, Kaduna has become impossible, in the sense that there has been an intervening event of death of the sole beneficiary of Exhibits P5 and P6. Indeed, a new situation has evolved and persists till date. With the death of a party to a personal action, the subject matter of the dispute with the cause of action and any judgment or court order made thereon are gone forever. Let me add, that the position remains the same where death occurs before or after judgment has been delivered in the case, that is to say, during the pendency of an appeal. See Egbon Edo V. Raymond Nwosu: In Re: Monday Egbon (1978) 5 F.C.A. 10/13.
Let me restate that an order of a trial court is binding on all parties to the case and or their privies and depending on the nature of the case. As long as the order remains in force, the law requires the parties or their privies where feasible to comply therewith pending its being set aside either on appeal or otherwise. In the instant case, the order of the Federal High Court, contained in Exhibit P6 and directed at INEC – the 3rd Respondent herein amongst others, remained binding and in full force until 17th April, 2007 when Maj. – Gen. Musa Bamaiyi (Retd.), the sole beneficiary died. With such an irreversibly changed situation, a different result or outcome is to be expected. Death is inevitable and irreversible. It is evident that with the demise of Maj.-Gen. Musa Bamaiyi (Retd.), who is directly affected and a necessary party, the appeal lodged by the 2nd Respondent herein, vide Exhibit Rl is incapable of being heard if not rendered impossible to be finally determined one way or the other. The appeal can be taken to have become abated, aborted, terminated, lapsed or deemed abandoned by the fact of death of the main or sale respondent who is incapable of being substituted by any heir or personal representative. The law is an equal dispenser of justice without qualms, fear or favour. It leaves no one with a justifiable cause without a remedy for his or her right. Thus, the right of the 2nd Respondent herein to appeal has been killed or smashed to smithereens with the death of the sole respondent. It stands to reason that the appeal has lapsed and the judgment predicated thereon rendered ineffective, ineffectual and unenforceable in the given circumstances and facts of this case. Where a party to an appeal dies and the appeal does not survive, the appeal shall abate by reason of such death.
There is need for me to consider and construe the provisions of S.34(3) and S.37(1) of the Electoral Act, 2006 in the resolution of this issue. S.34(3) Electoral Act, 2006 states:
Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this Section.
S.37(1) Electoral Act, 2006 also provides:
If after the time for the delivery of nomination paper and before the commencement of poll, a nominated candidate dies, the Chief National Electoral Commissioner or the Resident Electoral Commissioner shall, being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commission shall appoint some other convenient date for the election. Both provisions are invocable in the instant case. All parties herein are ad idem on the fact that the nominated candidate ordered to be placed on the ballot paper died after the time for the delivery of nomination paper and before commencement of the poll. In the instant case, it could be argued that the Resident Electoral Commissioner – 4th Respondent, upon being satisfied of the fact of the death of the said nominated candidate/court ordered candidate, ought to have countermanded the poll in which the deceased candidate was to participate and appoint some other convenient date for the election. The question then arises as to when or where there is no such countermand of poll and fixation of another convenient date for the election – who should be the complainant or person challenging such a decision? Is it the party to which the deceased candidate belonged or any other party, candidate or political party, like the Appellants herein? I’ll resolve this anon. KJL
S.34(3) of the Electoral Act, 2006 is an exception to the rule and it counts. It provides for substitution or replacement of a deceased candidate by a political party to which the deceased candidate belonged, within a period which is less than sixty days to the date of the election. To my understanding, if a nominated candidate dies, let’s say on the eve of an election, it behoves the political party to which the deceased candidate belonged to either substitute/replace the deceased candidate and proceed to poll or seek that the poll be countermanded and request that another convenient date for the election be appointed by the Resident Electoral Commissioner. I am of the humble opinion that the issue will be taken or considered as the exigency of the situation dictates. This is moreso, since the monumental event of death does not serve any notice on either the healthy or the ailing. Sub-section (3) of S.34 of the Electoral Act, 2006 is clear on the point, that in the case of death of a nominated candidate, there can be substitution or replacement of such a deceased candidate after the date or period referred to in subsection (1) of the said Section.
It is trite that the primary rule of interpretation as applicable to statues and documents requires that words and phrases must be given their natural meaning without extrapolations. Such words must not be construed in a manner which is contrary to their meanings. The duty of the court is to expound the law as it is and not expand it as it ought to be, regardless of the result or outcome and as long as it does not entail or lead to absurdity. Effect must be given to straightforward literal meanings of words used in statutes and documents. See Ugwu V. Ararume (2007) 12 N.W.L.R. (Pt,1048) 367/498.
To my mind, thinking and understanding, the word “except” in S.34(3) (supra) means to leave out or exclude. When it is used in an enactment, it amounts to an exception to or exclusion of the general rules/provisions. Hence, once subsection (1) of Section 34 of the Electoral Act, 2006 has been excepted, excluded or exempted by sub-section (3) thereof, it has provided a leeway for substitution or replacement to be made at any point in time between the sixty days mentioned or specified therein and the eve of the election, since no limitation whatsoever has been stipulated therein. The law is that there shall be no substitution or replacement of any candidate for any reason whatsoever after the period specified or referred to in sub-section (1) thereof except in the case of death of the previously nominated candidate. We now have such a situation in the instant case. Death of a candidate has occurred.
S.34 of the Electoral Act 2006, provides that a political party intending to change any of its candidates for any elective office in an election shall notify or inform the Independent National Electoral Commission of such a change in writing.
The notification by the political party of such a replacement does not require much formality, but it must be in writing. Since, it is an issue which borders on and touches candidature, once the replacing candidate is otherwise qualified, it is entirely within the domains of the political party concerned and INEC without the intervention or involvement of other political parties.
I am also of the firm viewpoint that the word “shall” in S.37 of the Electoral Act, 2006 is permissive, directory and not compulsory or mandatory. This is because, a political party whose candidate died after the time for the delivery of nomination paper and before the commencement of the process of casting votes at an election has a choice, either to renominate another candidate to contest the election or seek for the postponement of the election to some other convenient date to be fixed by INEC. Where the political party chose the former course of action, it cannot be heard to complain that the late substitution of its deceased candidate affected its performance or fortune at the poll. This is simply because, having exercised the option to proceed with the election with its renominated candidate in replacement of the deceased candidate, then if it works out well, all and fine and if otherwise, it is just too bad.
In the given circumstances and facts of this case, I do not see how as at the date of the election, the candidature of the 1st Respondent could be said to have been made in flagrant disregard or disobedience of the orders made by the Federal High Court, Kaduna in Suit NO.FHC/KD/CS/36/07 and contravention of INEC guidelines and regulations. There is pleading and uncontroverted evidence placed before Tribunal by the 3rd – 5th Respondents that the 2nd Respondents applied for replacement of its deceased candidate with the 1st Respondent and it was granted.
The law is settled that where there is no contrary evidence, the presumption exists, that things have been rightly and properly done. See I.R.P. Nig. Ltd. v. Oviawe (1992) 5 N.W.L.R. (Pt.243) 572; Odubeko V. Fowler (1993) 7 N.W.L.R. (Pt.308) 637. Issue number one is accordingly resolved against the Appellants. On issue number two, it is submitted by the learned counsel for the Appellants that Exhibit R2 – Letter dated 18th February, 2007 entitled “Replacement of candidates for 2007 election under the A.N.P.P.”, showed that the 1st Respondent was substituted with another candidate by ANPP only on the stated date – 18th February, 2007. Furthermore, that even if invalid nomination or substitution of 1st Respondent only warrants consideration as a ground of non-compliance under S.145(1)(b) of the Electoral Act, 2006, it does not call for the application of S.146 of the Act. Relying on the pronouncement of Chukwuma Eneh JSC in Ararume’s case, the submission was made by Appellants counsel that requirements of valid nomination and substitution do no admit of the principle of substantial compliance but one of strict adherence. Appellants counsel argued extensively that the merger which arose pursuant to an unholy cum illegal alliance which under cuts S.84 of the Electoral Act, 2006 should not have been accorded judicial recognition and validation by the Tribunal. It was argued in another vein that substitution of a candidate based on “insufficient information” does not satisfy the requirement of cogent or verifiable reason and thus in breach of S.34 of the Electoral Act, 2006.
1. Appellants contended that the Tribunal was wrong to have inferred proof in favour of the Respondents when there was neither pleadings nor evidence in support of such material facts as it did with Exhibit R2 regarding the issue of substitution and withdrawal of candidate. They maintained that the Tribunal by such a showing failed to realize that the onus of proof has shifted and thereby misplaced the burden of proof on the wrong party and in this instance, the Appellants. Reference was made to Onbruchere & Anor. V. Esegne & Anor. (1986) 1 N.W.L.R. (Pt.19) 799/807. Appellants then sought our intervention since the questionable findings by the Tribunal are predicated on documentary evidence and issues of law which we are as good in a position as the Tribunal to re-evaluate and come to correct conclusions as opposed to the perverse and erroneous ones reached by the Tribunal. On all these submissions, specific references were made to Exhibits P2 and P10. We were urged in conclusion by the Appellants to resolve this issue in their favour, allow the appeal, nullify the election of 1st Respondent as the Senator representing Kebbi South Senatorial District and order that a fresh election be conducted in accordance with S.147 of the Electoral Act, 2006. Responding to the submissions of learned counsel for the Appellants on this second issue, Yahaya Mahmood Esq., learned counsel for the 1st and 2nd Respondents countered that the 1st Respondent could not be said to have been doubly nominated to contest the said election, since ANPP validly nominated another candidate who contested for the said elective post. Furthermore, that by so doing, it means that they have accepted the resignation of the 1st Respondent from the party – ANPP.
On his part and submission in reply, the learned counsel for the 3rd – 5th Respondents pointed out that the Tribunal found that the Appellants did not prove their allegations that the 1st Respondent did not validly withdraw his ANPP candidature before he was sponsored by the PDP coupled with the arrangement being the product of an illegal merger agreements between Kebbi Chapters of the two political parties. It was thus argued that upon due review of the evidence placed before it, the Tribunal came to a right decision and which said decision did not occasion miscarriage of justice. It was also submitted by the learned counsel for the 3rd and 5th Respondent and in conclusion on this issue, that before an election is nullified on the ground of non-compliance, irregularities, breaches or infractions appertaining to provisions of the Electoral Act, 2006, the petitioner must show and satisfactorily too, that the noncompliance was not only substantial but further affected the result of the election substantially.
The focal point of this issue is basically that of proof. It is trite that he who alleges must necessarily prove. Where a party pleads and fails to prove the pleaded facts, the pleadings are thereby deemed abandoned. In the instant case, the Appellants copiously pleaded double nomination in the petition. The pleadings of the Appellants as Petitioners in paragraph 10(d) and (e) of the petition relate to allegations of double nomination and non-withdrawal of candidature of 1st Respondent. Both the 1st and 2nd Respondents denied the allegations in paragraphs 2 and 8 of their reply. The 3rd – 5th Respondents did the same in paragraphs 7 and 10 of their joint reply. Issues were accordingly joined thereon.
As submitted in the brief settled by the learned counsel for the 3rd – 5th Respondents, the onus of proof in this connection lie squarely on the Appellants and until such required evidence is led, the burden does not shift. I am with him on this. As previously stated by me, it is trite that he who asserts the existence of certain facts either affirmatively or otherwise, must prove that the facts truly exist by adducing convincing and cogent evidence in proof thereof. In the instant case, where is the evidence? Was it established before the Tribunal that while the 1st Respondent was both a member and the candidate of ANPP for election as Senator representing Kebbi South Senatorial District of Kebbi State, he was similarly sponsored by the 2nd Respondent for the same elective office, without prior resignation and proper withdrawal of his nomination cum candidature as provided under S. 36 of the Electoral Act, 2006? What is more, in the absence of proof of prior nomination of 1st Respondent as ANPP’s candidate; the issue of withdrawal of such a nomination does not even arise at all.
It is amazing that the Appellants repeatedly and incessantly maintained that Exhibit R2 categorically showed that ANPP replaced or substituted the 1st Respondent herein as its candidate for the said election only on 18th February, 2007. Election petition though sui generis, of its own class, cadre and category, it still remains as a specie of civil suits. It is thus required that when a petitioner alleges that there has been non- compliance with provisions of the Electoral Act, then the standard of proof is the preponderance of admissible evidence. Put differently, the required proof is on the balance of probabilities. That is, between the two versions placed before the court or tribunal; which is more probable or likely to be true rather than the other. It is further settled law, that the onus of proof shifts like a pendulum from one party to the other depending on the nature/type of case and evidence required and adduced by either of the parties. Thus, where a party has proferred sufficient evidence to tilt the balance on the imaginary scale in his favour, the other party would have the scale loaded against him and lose if no rebuttal evidence is led as the onus would have shifted to the said party. Howbeit, the onus does not even begin to shift until the party with the initial burden has succeeded and placed something concrete and tangible on the evidential scale. In Buhari v. Obasanjo (2005) 13 N.W.L.R. (Pt.941)1, the Supreme Court held that where an allegation of non compliance with the electoral law is made, the onus lies on the petitioner firstly to establish the noncompliance, and secondly, that it did or could have affected the result of the election. It is after the petitioner has established the foregoing that the onus would shift to the respondent whose election is being challenged, to establish that the result was not so affected.
In the instant case and based on the invitation of the Appellants which represent the position of the law, I have looked at and examined Exhibit R2. It is the final list of names of candidates sponsored and nominated by ANPP in respect of all elective posts in Kebbi State for the general elections held nationwide during the 2007 election. It is noteworthy that the 1st Respondent’s name cannot be found anywhere thereon, either as the substitute or substituted; replaced candidate or replacement, with regards to the Kebbi South Senatorial District of Kebbi State or otherwise. I am unable to find where the name of 1st Respondent was mentioned therein. This is so, simply because it was not contained therein. What you have in Exhibit R2 is the name of Alhaji Bello Usman Yelwa as the replacement candidate for the previously nominated candidate in the person of Abubakar Saddiq Yelwa. It has not been shown anywhere in Exhibit R2 and before the Tribunal, that the 1st Respondent herein is also known, called and identified with the name – Abubakar Saddiq Yelwa, the substituted candidate. So, why all the fuss, huff and puff by the Appellants in respect thereof. I strongly believe that there must have been a mix-up along the line on their part. So, to the question as to whether the 1st Respondent knowingly allowed himself to be nominated by both the 2nd Appellant and the 2nd Respondent herein and in breach of S.38 of the Electoral Act, 2006, I answer with a resounding no and that nothing of the sort took place.
S.38 of the Electoral Act, 2006 is emphatic and categorical on the point that where a candidate “knowingly” which includes intentionally, allows himself to be nominated by more than one political party or in more than one constituency his nomination shall be rendered void. In the instant case, the Appellants woefully failed to establish the allegation of multiple nomination or sponsorship levelled against the 1st and 2nd Respondents. making an allegation is one thing, proffering proof to establish the same is another. In practice and procedure, it has been considered as a good policy, never to plead what you do not need or require, lest you are obliged to prove what you cannot and is rather inept and unnecessary in the first instance.
On the application of S.146 of the Electoral Act, 2006 vis-a-vis issues of nomination, withdrawal and substitution of candidates being one of strict adherence and not substantial compliance as argued by the learned counsel for the Appellants, I am of the firm viewpoint that the main forte of S.146(1) of the Act, is to ensure that not every minor breach, infraction or non-compliance with the provisions of the Electoral Act should spell doom and vitiate an election – all in the spirit and principles of the Act. Thus, failure to comply with provisions of the Act with insignificant value, which has no reverberating effects on or substantially affect the outcome of the election, is not heavily sanctioned with invalidation or nullification of the election.
The Tribunal or Court has power to determine from the evidence placed before it in any given case, whether an alleged non-compliance with electoral law is damaging, destructive, or substantial enough to warrant wielding the big stick of invalidation cum nullification of an election. See Buhari V. Obasanjo (2005) 13 N.W .L.R. (Pt.141) 1.
I also make bold to state that the Tribunal did not accord judicial recognition and validation to the alleged merger agreement which purportedly gave birth to the unholy alliance between the Kebbi Chapters of PDP and ANPP. It is clear to me that the evidence presented thereon by the Appellants was adjudged by the Tribunal to be porous and weightless. Thus, onus of proof in the instant case did not shift and the Tribunal did not misplace the burden of proof. I have given due considerations to the record of proceedings of the Tribunal, that is the record of appeal placed before us, coupled with the documentary evidence appertaining thereto and the submissions of all the learned senior counsel for the parties herein, I am satisfied that I can safely resolve the two issues raised and adopted above against the Appellants and I so do. The Tribunal rightly in my view found against the Appellants having fully considered all the pieces of documentary evidence placed before it. I am not prepared to disturb the findings of the Tribunal in its decision in the instant case.
In essence and conclusion, I find no merit in this appeal and accordingly dismiss it in its entirety. The judgment of the Tribunal is thus upheld by me. The said judgment in Election Petition NO.KB/EPT/SEN/3/2007 delivered on the 10th day of October, 2007 is hereby affirmed by me. I award costs assessed at W20,000.00 in favour of each set of Respondents respectively.
BABA ALKALI BA’ABA, J.C.A: I agree.
JOHN INYANG OKORO, J.C.A: I read before now the judgment just delivered by my learned brother, Oredola, JCA. My brother has quite efficiently and very meticulously resolved all the salient issues canvassed in this appeal and I have nothing more to add except to emphasize that Sections 34(3) and 37(1) of the Electoral Act have clearly cast doubt on the case of the Appellants. Major General Musa Bamaiyi (deceased) was the candidate of the PDP until his death on 17th April, 2007. In spite of Section 37 (1) of the Act, the PDP found it convenient to allow the election to go on four days thereafter with the 1st Respondent as its candidate instead of asking for a postponement. I do not see how this should be a reason for disturbing the outcome of that election. The appellants have failed to show who ought to have benefited from the order of the Federal High Court in place of the Late General Bamaiyi. It was a personal action and his death had put an end to it. No one could inherit it. Therefore, PDP could use the 1st Respondent as its candidate by virtue of Section 34(3) of the Electoral Act 2006. The party also had a choice of asking for a postponement by virtue of Section 37 (1) of the Act. That being the case, I agree’ with my learned brother that the 1st Respondent was properly placed on the ballot for the said election. I too find no merit in this appeal and is hereby dismissed by me. I abide by all consequential orders made in the lead judgment including order as to costs.
Appearances
Oladipo Tolani Esq.;
Kabir Momoh Esq. and
F. Sasanya (Miss)For Appellant
AND
Yahaya Mahmood Esq.;
Linda Yaro (Miss)
Ahmed Mohammed Esq.For Respondent
