AMUDA YUSUF ANIMASHAUN & ANOR v. OLUYINKA OGUNDIMU & ORS
(2015)LCN/8040(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of December, 2015
CA/L/EP/HA/1098/15
RATIO
ELECTION: PRIMARIES OF POLITICAL PARTIES; WHETHER THE PURPOSE OF THE NOTICE REQUIRED UNDER SECTION 85(2) IS TO ENABLE INEC TO ATTEND THE PRIMARIES BY THE USE OF THE WORD ‘MAY’
The purpose of the notice required under Section 85(1) of the Electoral Act 2010 (as amended) is not necessarily to enable INEC attend and monitor the primaries of political parties in order to perform its functions under Section 86(1) of the Act. This is because Section 85(2) gives INEC the discretion whether or not to attend the primaries by the use of the word “may”. In the case of EDEWOR v. UWEGBA & ORS (1987) LPELR-1009 (SC) on the import of the word “may” the Supreme Court observed Per NNAMANI, J.S.C. (Pp. 45-46, paras. B-B):
“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipality of Yass (1922) 22 SRNSW 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it…” If the attendance of INEC is not mandatory, the performance of its functions encapsulated under Section 86 (which is to keep records of the activities of all registered parties) cannot be tied inextricably to it. This is so because there are other avenues or channels through which INEC can obtain records. However, I will not ignore the fact that obtaining record might be part of the reasons for mandating parties to notify INEC within 21 days of its primary elections. per. CHINWE EUGENIA IYIZOBA, J.C.A.
ELECTION: PRIMARIES; WHETHER THE FACT THAT INEC OFFICIALS ATTENDED AND OBSERVED THE PRIMARIES CAN SAVE THE PRIMARIES FROM BEEN DECLARED A NULLITY WHERE A POLITICAL PARTY FAIL TO COMPLY WITH SECTION 85(1) AND TO GIVE SUFFICIENT NOTICE
If therefore a political party did not comply with Section 85(1) and did not give the 21 days notice of all or sufficient notice, the fact that INEC officials nonetheless attended and observed the primaries cannot save the primaries from being declared a nullity. The case of Atai v. Dangana (supra) heavily relied on by the Appellants is not apposite to the instant case. There, 21 days notice was not given before the primaries and the primaries were held in utter disregard of the warning of INEC that the primaries were being conducted in disobedience of the mandatory 21 days notice required by Section 85(1) of the Electoral Act. per. CHINWE EUGENIA IYIZOBA, J.C.A.
ELECTION: CHALLENGING AN ELECTION; THE GROUNDS FOR CHALLENGING AN ELECTION
Section 138 of the Electoral Act sets out the grounds for challenging an election as follows:
(a) That a person whose election is questioned was at the time of the election not qualified to contest the election.
(b) That the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act;(c) That the respondent was not duly elected by majority of lawful votes cost of the election: or
(d) That the petitioner or its candidate was validly nominated but unlawfully excluded from the election. It is only where the election is being challenged on the ground of non compliance with the provisions of the Electoral Act (b) above that the question would arise whether the non compliance affected the result of the election. See Section 139(1) of the Electoral Act. See also Okechukwu v. INEC (2014) 17 NWLR (Pt.1436) 255 at 309; PDP v. INEC (2014) 17 NWLR (Pt.1437) 525 at 567-568. It does not arise in the case of (a) above where the issue is whether the person was at the time of the election qualified to contest the election. per. CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. AMUDA YUSUF ANIMASHAUN
2. PEOPLES’ DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. OLUYINKA OGUNDIMU
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National/State Legislative Houses Election Tribunal (Panel 3), Ikeja, Lagos delivered on the 6th day of October 2015 wherein the trial Tribunal dismissed the petition of the appellant and confirmed the declaration and return of the 1st respondent by the 3rd respondent as the duly elected member representing Agege II Constituency in the Lagos State House of Assembly.
The 1st appellant was a candidate of the 2nd appellant at the Lagos State House of Assembly Election held on 11/4/2015. At the end of the election, the 3rd Respondent returned the 1st Respondent as the winner of the election. The Appellants who were dissatisfied with the declaration and return of the 1st respondent challenged the return on the ground that he was not qualified to contest the election. The brief summary of facts as alleged by the appellants are that the 2nd respondent, All progressive Congress (APC) held its primary elections for the House of Assembly on the 1st day of December, 2014 without giving the 3rd Respondent (INEC) the requisite 21 days Notice as required by Section
1
85(1) of the Electoral Act. Prior to the date for the primaries, the 2nd Respondent issued on initial Notice to INEC dated 19th September, 2014 (EXHIBIT D1) that primaries shall be conducted on the 8th of November, 2014. But before the said date, the 2nd Respondent via another letter to INEC dated 18th November, 2014 (EXHIBIT C) notified the INEC, 3rd Respondent that the date has been rescheduled and that the primaries will subsequently hold on the 1st December, 2014. The contention of the Appellants is that the second notice rescheduling the election did not comply with the 21 days notice required by law. They therefore filed a petition wherein they claimed the following:
(a) A DECLARATION that 1st Respondent being the candidate of the 2nd Respondent in the election conducted by the 3rd Respondent for the AGEGE II constituency of the LAGOS STATE HOUSE OF ASSEMBLY on the 11th APRIL, 2015 was not on the ballot and did not participate in the said election as the Notice of the Party primaries which produced the 1st Respondent as candidate of the 2nd Respondent given by the 2nd Respondent to the 3rd Respondent fell short of the period of at least 21 days required
?2by Section 85(1) of the Electoral Act 2010 (As Amended).
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(b) AN ORDER nullifying the declaration and return of the 1st Respondent as candidate of the 2nd Respondent as winner in the election conducted by the 3rd Respondent for the AGEGE II constituency of the Lagos State House Assembly on the 11th April, 2015 on the ground that the 1st Respondent ought not to, and was not qualified to have contested the said election having violated Section 85(1) of the Electoral Act, 2010 (As Amended).
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(c) A DECLARATION that the 1st Petitioner as candidate of the 2nd Petitioner having scored the highest number of the lawful votes of 12,066 cast in the election conducted by the 3rd Respondent for the AGEGE II constituency of the LAGOS STATE HOUSE OF ASSEMBLY on the 11th April, 2015 amongst all the candidates eligible to contest in the said election be declared the winner and duly returned.
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(d) AN ORDER declaring the 1st petitioner as candidate of the 2nd Petitioner having scored the highest number of the lawful votes of 12,066 cast in the election conducted by the 3rd Respondent for the AGEGE II constituency of the LAGOS STATE HOUSE OF ASSEMBLY on the 11th April, 2015 amongst
?3 all the candidates eligible to contest in the said election be declared the winner and duly returned.
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(e) AN ORDER directing the 3rd Respondent to withdraw forthwith the certificate of return issued to the 1st Respondent as candidate of the 2nd Respondent in the election conducted by the 3rd Respondent for the AGEGE II constituency of the LAGOS STATE HOUSE ASSEMBLY on the 11th April, 2015 and to issue the 1st Petitioner as candidate of the 2nd Petitioner forthwith with the a certificate of return as winner of the election conducted by the 3rd Respondent for the AGEGE II constituency of the LAGOS STATE HOUSE OF ASSEMBLY ON THE 11TH APRIL, 2015.
The Respondents at the Trial filed their Replies to the petition. At the close of trial and after parties had adopted their final written addresses, the Tribunal delivered its judgment in favour of the Respondents thereby dismissing the Petitioners’ petition.
Dissatisfied with the judgment of the Tribunal the Appellants on 26/10/15 filed a Notice of Appeal with seven grounds of appeal. In accordance with the Rules of this Honourable Court, Briefs were filed and exchanged by the parties. The Appellants’ Brief is dated 12th
?4 November, 2015 and filed on the 13th November, 2015. The 1st and 2nd Respondents’ Brief is dated 20th November, 2015 and filed on the same day. The 3rd Respondent’s brief is dated and filed on 20/11/15. The appellant’s reply brief to the 1st and 2nd respondents’ brief is dated and filed on 23/11/15. The Appellants’ brief which was settled by Chief Richard Oma Ahonaruogho, Chief (Mrs) Mojisola Ahonaruoghuo, Ikhide Ehighelua Esq and others raised two issues for determination to wit:
1. Whether in view of the 2nd respondent’s letters to the 3rd Respondent dated 19/9/2014 (Exhibit D), 5/11/2014 (Exhibit D1) and 18/11/2014 (Exhibit C) the Tribunal was right to have held that the 2nd Respondent complied with the provision of Section 85(1) of the Electoral Act, 2010 (as amended) in the conduct of its primary elections which led to the emergence of the 1st Respondent as its candidate for the Agege II constituency seat in the House of Assembly held on 11th April, 2015. (Grounds 2, 3, 4, and 5 of the notice of appeal)
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2. Whether the judgment of the trial Tribunal is wrong and perverse when it refused to uphold/follow the decisions of the Supreme Court cited before it
?5 and therefore dismissed the appellants’ petition. (Grounds 1, 6, and 7)
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The 1st and 2nd Respondents’ Brief was settled by Dr Muis Banire SAN, R. A. O. Adegoke Esq, Tayo Olatunbosun Esq and others and it raised a sole issue for determination as follows:
1. Whether the Tribunal was right when it held that the 2nd Respondent complied with the required notice under Section 85(1) of the Electoral Act 2010 (as amended) (Grounds 1, 2, 3, 4, 5, 6, and 7)
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The 3rd Respondent’s brief was settled by Ahmed Akanbi Esq. He adopted the two issues formulated by the appellants. In determining this appeal, I shall also adopt the issues formulated by the Appellants as they encompass the sole issue raised by the 1st and 2nd respondents. The two issues will be taken together.
I have read carefully the submissions of Counsel in their respective briefs. I shall in the course of writing this judgment refer to the submissions where necessary. The first issue to determine is whether the trial Tribunal was right that the 2nd respondent complied with Section 85(1) of the Electoral Act, 2010 (as amended).
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Section 85 of the Electoral Act provides as follows:
(1) Every registered political
6 party shall give the Commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under this Act.
(2) The Commission may with or without prior notice to the political party attend and observe any convention, congress, conference or meeting which is convened by a political party for the purpose of:
(a) electing members of its executive committees or other governing bodies;
(b) nominating candidates for an election at any level, and
(c) approving a merger with any other registered political party.
(3) The election of members of the executive committee or other governing body of a political party, including the election to fill a vacant position in any of the aforesaid bodies, shall be conducted in a democratic manner allowing for all members of the party or duly elected delegates to vote in support of a candidate of their choice.
(4) Notice of any congress, conference or meeting for the purpose of nominating candidates for Area (‘council elections shall be given to the commission
?7 at least 21 days before such congress, conference or meeting.”
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Section 86(1) of the Electoral Act on the other hand provides as follows:
“The Commission shall keep records of the activities of all the registered political parties.”
Section 85(1) is a clear and unambiguous provision. The primary rule of construction is the literal construction which requires that we give the words used in the statute, and only those words, their ordinary and natural meaning, omitting no words and adding none. Nwakire v. C.O.P. (1992) NWLR (Pt.241) 289 per Nnaemeka-Agu JSC. See also PDP v. INEC (2014) 17 NWLR (PT.1437) PAGE 525 at 558 C-D cited by appellants’ Counsel where the court observed:
“The cardinal principle in the interpretation of statutes is that the meaning of a statute or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any notion that may be entertained as to what is just and expedient. The literal rule of interpretation is always preferable unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole.”
See also DANGANA v. USMAN (2013) 6 NWLR (PT.1349) 50 at 80-81 H-B also cited by Appellants’ Counsel where
?8 the apex court observed:
“Furthermore, where the words of a statute are clear, unambiguous and unequivocally express the intention of the lawmakers, effect must be given to them irrespective of whether that produces a harsh or inconvenient result.”
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The law as laid down by the apex Court in a plethora of cases is that failure to comply with Section 85(1) of the Electoral Act renders any primary election held by a political party a nullity. AMAECHI v. INEC (2008) 1 MJSC 1-25 PAGE 1 AT PAGE 44; HON. AIDOKO ALI USMAN ATAI AND ANOR v. OCHEJA EMMANUEL DANGANA & 3 ORS INEC LAW REPORT (2012) VOL. 1 523 at 541. A literal interpretation of Section 85(1) effortlessly reveals th at a political party shall give INEC 21 days notice of its primary elections and there is nothing so long as that section is concerned that dispenses with Notice not even the presence of all INEC officials at the primaries who attend without such notice. This is more accentuated by the use of “shall” in the section. In the case of NWANKWO v. YAR’ADUA (2010) 12 NWLR (PT.1209) 513 SC AT Page 589 paras B-C the Supreme Court observed per Adekeye JSC:
?”The foregoing is surely a mandatory
9 provision because the operative word there is “shall”. The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as if is intended to denote obligation.”
This Court adopted the Supreme Court’s decision in the case of JOHN v. IGBO-ETITI LOCAL GOVERNMENT AREA (2013) 7 NWLR (PT.1352) 1 CA at page 15 paras A-E where it held per Okoro JCA (as he then was)
“It is trite that whenever the word “shall” is used in an enactment, it connotes imperativeness and mandatoriness. If leaves no room for discretion at all.”
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It is clear from the above cited cases that the deliberate inclusion of the word “shall” in the section has made the 21 days notice to INEC mandatory and parties do not have the discretion to choose whether or not to issue such notice. Failure to issue this notice renders the primary election so conducted a nullity. The issue in contention should not therefore be whether failure to give the requisite 21 days notice renders the nomination a nullity. That is
10 given. The issue should be whether the 2nd Respondent gave INEC 21 days notice before its primary election to the House of Assembly conducted on 1/12/14 in which the 1st Respondent emerged as the candidate of the party. What happened is this: The 2nd Respondent wrote a letter dated 19/9/14 (Exhibit D1) notifying INEC of the primary election of the party scheduled on various dates. The 1st Respondent’s primary election – State House of Assembly was to be held on 8/11/14. For some reasons it became necessary to reschedule the dates for the elections. Another letter dated 18/11/14 (Exhibit C) was written to INEC rescheduling the date of the primaries. The two letters are reproduced hereunder:
The first letter dated 19/09/2014 reads:
“Dear Sir,
NOTICE OF SPECIAL CONGRESSES FOR THE NOMINATION OF CANDIDATES ? 2015 GENERAL ELECTIONS
Please be advised that our party has scheduled to hold primary Elections for the nomination of candidates in respect of the 2015 General Elections as follows:
i. State Houses of Assembly – Saturday, 8th November 2014
ii. Governorship – Saturday 8th November, 2014
iii. House of Reps – Monday 24 November, 2014
?iv. Senate – Saturday, 29th
11 November, 2014
v. Presidential – Tuesday, 2nd December 2014
The second letter dated 18/11/14 reads:
“Dear Sir,
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REVISED DATE FOR THE CONDUCT OF PRIMARIES
Please be advised that our party has rescheduled date for the conduct of Primaries as follows:
i. Houses of Assembly ? 1st December, 2014
ii. Governorship – 4th December, 2014
iii. House of Representatives ? 7th December, 2014
iv. Senate – 8th December, 2014
v. Presidential Convention – 10th December, 2014
The contention of the appellants is that notice was given to INEC in the letter of 19/9/14 (Exhibit D1) that the 2nd Respondents’ primaries for State House of Assembly will hold on 8/11/14; that the rescheduling of the primaries by the notice of 18/11/2014 (Exhibit C) extinguished the notice of 19/9/14; and that another fresh notice of 21 days was required to validate the primaries of 1/12/14; that the second letter of 18/11/14 was the notice for the primaries of 1/12/14 and was short of the 21 days required by Section 85(1) of the Electoral Act and consequently rendered the primaries a nullity. At page 396 of the printed record, the Tribunal in its judgment observed:
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“Clearly, the letter dated 19-9-14
12 came first before the one dated 18-11-14. Petitioner’s Counsel is contending that since the primary did not hold on the 8th of November as planned, as per Exhibit “C” and was postponed, the 21 days notice was extinguished and would start to run again. 3rd Respondent’s own contention is that the letter dated 19-9-14 satisfied the requirement under Section 85(1) .
In an election petition, a Petitioner who alleges non compliance with the Electoral Act has two fold burden on him to prove and satisfy the Tribunal namely:
(a)That alleged non compliance occurred.
(b) That the non compliance affected the result of the election.
Learned Counsel for the Petitioner has alluded to the fact that the Exhibit “C” and Exhibit “D1” are not related in any way. We have looked at both letters and they are in fact identical apart from the change of dates. It is clear and we hold that Exhibit “D1” is rescheduling of Exhibit “C”. Though the 1st petitioner gave evidence that Exhibit “C”?is the only letter he was aware of from the 2nd Respondent to the 3rd Respondent, there is nothing to challenge the fact that Exhibit “D” was actually received by the 3rd Respondents. DW1 has described all
13 other letters after Exhibit “C” as an addendum.
In Okonkwo v. Onovo, it was held that:
“Where a Petitioner grounds his petition on non compliance with the Electoral Act, the burden he places on himself is much higher than he otherwise would be called upon to discharge….”
We have seriously considered the submission of all the parties on this issue of non compliance. We do not agree that since the primary election did not take place on 8-11-14 as stated in Exhibit “D1”, the notice became extinguished. It is not in doubt that Section 85(1) does not make it mandatory that the 21 days notice be given by the party. The question that would arise is what is the consequence of disobedience of that provision? We agree with learned Counsel for the Respondent that there is no consequence under that section. In fact Section 139 of the Act provides that:
“(1) An election shall not be liable to be invalidated by reason of non compliance with the provision of the Act, if it appears to the Election Tribunal that the election was conducted substantially in accordance with the principle of this Act and that the non compliance did not affect substantially the result of the
14 election.”
…………………………………………………………………………..
It is our view that the letter of 19-9-14 (Exhibit “D1″) clearly complies with the 21 days notice required by Section 85(1) of the Electoral Act.
We hold that the primary held on 1-12-14 was valid and the sponsorship of the 1st Respondent as its candidate by the 2nd Respondent was valid.”
I agree with the Tribunal that it is the notice of 19-9-14 that should be considered in determining whether there is compliance with Section 85(1). I do not however agree with the tribunal that the two letters are identical except for change of date. The letter of 19/9/14 as shown above said:
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“Please be advised that our Party has scheduled to hold primary Elections for the nomination of candidates in respect of the 2015 General Elections as follows:” The second letter of 18/11/14 says: “Please be advised that our Party has rescheduled dates for the conduct of Primaries as follows:”. The second letter of 18/11/14 is captioned “REVISED DATE FOR THE CONDUCT OF PRIMARIES”. The word “Revised” implies that it is a follow-up from some earlier dates. Further, the words “schedule” and
15 “reschedule” used in the letters supply the necessary link. “Reschedule” again implies a follow-up from a previous schedule. In the American Heritage Dictionary of the English Language Fifth Ed., the word “reschedule” was said to mean “to schedule again or anew” such as to reschedule the meeting for the following week. In Collins English Dictionary – Complete and Unabridged it means “to change the time, date or schedule of “In Thesaurus it means “to assign a new time and place for an event such as “we had to reschedule the doctor’s appointment”. It is very clear then that the second letter of 18/11/14 merely rescheduled the primaries previously scheduled in the letter of 19/9/14. The contention of the Appellants that the two letters are independent of each other because some of the dates earlier scheduled for some of the primaries had expired before the second letter was written is to my mind of no consequence. The concern here is the primaries for the State House of Assembly. The earlier date for holding that primaries had not expired before the second letter rescheduling the date was written to INEC. At any rate, the truth remains that none of the primaries
?16 for which the first notice was given had been held necessitating the rescheduling. It does not make any sense whatever to require another 21 days notice. That cannot be the intention of the Legislature. Also the contention of the Appellant that the word “any convention, congress, conference or meeting” in Section 85(1) means that any such convention, congress, conference or meeting whether initially scheduled or rescheduled requires 21 days fresh notice, again makes no sense and cannot be the intention of the Legislature. “Any” in the con used means the particular convention, congress, conference or meeting itself and not a rescheduled one which for one reason or the other could not hold. It seems to me from the arguments of learned Counsel for the Appellants that if the second letter of 18/11/14 had referred to the first letter of 19/9/14 and mentioned specifically that the primaries could not hold and is now being rescheduled to hold on the new dates, the notice would be held to date back to the letter of 19/9/14 and would then have satisfied the requirement of Section 85(1). That to my mind would amount to a clear case of placing undue emphasis on
17 technicalities of the expense of substantial justice. This court has been enjoined in a plethora of cases that technicality should not and must not be had recourse to in arriving at a just, equitable and fair judgment. In the case of ADEBESIN v. STATE (2014) LPELR-22694 (SC) P. 25, paras. B-E the Supreme Court cautioned Per NGWUTA, J.S.C:
“…this is a minor technical point that has no effect on the judgment of the Court below. At this stage in our jurisprudence, technicality must ex necessitate yield place to reality. See Broad Bank Nig. Ltd v. Alhaji S. Olayiwola & Sons Ltd & Anor (2005) All FWLR (Pt.251) 235 at 249-51 SC. Appellant cannot be allowed to latch on abstract technicality to boost his case to the detriment of substantial justice…”
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There is enough evidence to show that the two letters are related and that the Notice in the letter of 19/9/14 covers the primaries held on the 1st of December 2014 and is in full compliance with Section 85(1) Electoral Act being far beyond the 21 days notice required. Further more, Exhibit D1, a letter dated 5th November, 2014 which clarifies the nexus between Exhibits D and C reads as follows: “Please be advised
18 that with respect to the notice of our special congress for the nomination of our candidates, we wish to notify you of postponement of same to dates which shall be communicated soon.” Thus, it was right for the Tribunal to conclude that both notices are linked because they are not independent of each other.
I agree with the position of law as canvassed by the 1st and 2nd Respondents’ Counsel that where more than one document govern a particular transaction, no single document will be interpreted in isolation and I adopt the cases cited by learned Counsel UDEAGU v. BENUE CEMENT CO. PLC (supra); ALHAJI M. K. v. FIRST BANK OF NIGERIA PLC (supra); THE ATT. GEN. OF KADUNA STATE v. ATTA (1986) 4 NWLR (PT. 38) 785 C.A. In the case of UDEAGU v. BENUE CEMENT CO. PLC (supra) thus:
“It is not the duty of a court, to determine the issues before it on the basis of one document only, when a contract is contained in a series of documents or letters or correspondences. The court is under a duty, to consider the whole of what has passed between and the conduct of the parties.
All these letters are documents which belong to the same ‘transaction’: the primary elections. Therefore
19they cannot be interpreted independently to convey different information. They have one nexus and this court is under obligation to consider all the letters as a whole as the Tribunal rightly did.
The purpose of the notice required under Section 85(1) of the Electoral Act 2010 (as amended) is not necessarily to enable INEC attend and monitor the primaries of political parties in order to perform its functions under Section 86(1) of the Act. This is because Section 85(2) gives INEC the discretion whether or not to attend the primaries by the use of the word “may”. In the case of EDEWOR v. UWEGBA & ORS (1987) LPELR-1009 (SC) on the import of the word “may” the Supreme Court observed Per NNAMANI, J.S.C. (Pp. 45-46, paras. B-B):
“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipality of Yass (1922) 22 SRNSW 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it…”
?If the attendance of INEC is not mandatory, the
20 performance of its functions encapsulated under Section 86 (which is to keep records of the activities of all registered parties) cannot be tied inextricably to it. This is so because there are other avenues or channels through which INEC can obtain records. However, I will not ignore the fact that obtaining record might be part of the reasons for mandating parties to notify INEC within 21 days of its primary elections.
If therefore a political party did not comply with Section 85(1) and did not give the 21 days notice of all or sufficient notice, the fact that INEC officials nonetheless attended and observed the primaries cannot save the primaries from being declared a nullity. The case of Atai v. Dangana (supra) heavily relied on by the Appellants is not apposite to the instant case. There, 21 days notice was not given before the primaries and the primaries were held in utter disregard of the warning of INEC that the primaries were being conducted in disobedience of the mandatory 21 days notice required by Section 85(1) of the Electoral Act.
With respect I am of the view that the Tribunal was under a serious misconception of the law when it expressed the view
21that even if the 21 days notice was not complied with the question would then arise as to whether the non compliance with Section 85(1) affected the result of the election. Section 138 of the Electoral Act sets out the grounds for challenging an election as follows:
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(a) That a person whose election is questioned was at the time of the election not qualified to contest the election.
(b) That the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act;(c) That the respondent was not duly elected by majority of lawful votes cost of the election: or
(d) That the petitioner or its candidate was validly nominated but unlawfully excluded from the election.
It is only where the election is being challenged on the ground of non compliance with the provisions of the Electoral Act (b) above that the question would arise whether the non compliance affected the result of the election. See Section 139(1) of the Electoral Act. See also Okechukwu v. INEC (2014) 17 NWLR (Pt.1436) 255 at 309; PDP v. INEC (2014) 17 NWLR (Pt.1437) 525 at 567-568. It does not arise in the case of (a) above where the issue is whether the person was at the time
22 of the election qualified to contest the election.
The primaries that saw the emergence of the 1st Respondent as the candidate of the 2nd Respondent was in order and not a nullity. The Tribunal was correct in its decision that the Appellants failed to establish that at the time of the State House of Assembly election held on 11/4/15, the 1st Respondent was not qualified to contest the election. This appeal has no merit and same is hereby dismissed. The decision of the tribunal is affirmed. I make no order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A. : I agree.
JAMILU YAMMAMA TUKUR, J.C.A. : I agree.
Appearances
CHIEF RICHARD OMA AHONARUOGHO ESQ., with K. R. RAHEEM ESQ. and ETHARE OLADIPUPO AHONARUOGHO ESQ. For the Appellants
R. A. O. ADEGOKE ESQ., with D. ASUNI ESQ.,
For the 1st and 2nd Respondents
E. A. IFELOWO ESQ. with I. O. AYOADE ESQ.
For the 3rd Respondent
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Appearances
CHIEF RICHARD OMA AHONARUOGHO ESQ., with K. R. RAHEEM ESQ. and ETHARE OLADIPUPO AHONARUOGHO ESQ.For Appellant
AND
R. A. O. ADEGOKE Esq. with D. ASUNI ESQ., For 1st and 2nd Respondents
E. A. IFELOWO ESQ. with I. O. AYOADE ESQ. For 3rd RespondentFor Respondent
