HON. BONIFACE OKOYE & ANOR V. HON. GABRIEL OKOYE ONYENWIFE & ORS
(2011)LCN/4976(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of December, 2011
CA/E/EPT/56/2011
RATIO
QUALIFICATION OF A CANDIDATE FOR AN ELECTION: WHETHER THE ISSUE OF QUALIFICATION OF A CANDIDATE FOR AN ELECTION IS A GROUND FOR CHALLENGING AN ELECTION
By Section 138(1) of the Electoral Act 2010 (as amended), qualification is undoubtedly a ground for challenging an election, in an election petition. See PDP v. Saror and Suswam v. Saror (Consolidated Appeals) Nos. SC 381/2011 and SC 383/2011 of 28th November, 2011. PER ADAMU JAURO J.C.A
QUALIFICATION OF A CANDIDATE: WHETHER A PERSON MUST BE A MEMBER OF A POLITICAL PARTY AND BE SPONSORED BY THAT PARTY FOR HIM TO QUALIFIED FOR ELECTION AS A MEMBER OF A STATE ASSEMBLY
Furthermore, by Section 106(d) of the 1999 Constitution (as amended), before a person is qualified for election as a member of a State Assembly, he must be a member of a political party and sponsored by that Party. PER ADAMU JAURO J.C.A
PRE ELECTION MATTER: WHETHER THE TRIBUNAL WILL STRIKE OUT A PETITION WHERE ONE OF THE GROUNDS OF APPEAL IN SUPPORT OF THE PETITION RAISES A PRE-ELECTION MATTER
I have studied the grounds in support of the petition and the reliefs sought in the petition. The said grounds and releifs had earlier been reproduced in this judgment. For ease of reference however, the said grounds will be further reproduced hereunder. “(a) The return of the 1st Respondent as the person elected was invalid by reason of corrupt practices and substantial noncompliance with the provisions of the Electoral Act 2010 and the Manual made thereunder.
(b) The 1st and 3rd Respondents were at the time of the election not qualified to contest the election as both were, contrary to the provisions of the Electoral Act, sponsored by one political party, to wit, the 4th Respondent. (c) The 1st Respondent was not duly elected by majority of lawful votes cast.” Ground (a) above challenged the return of the 1st Respondent by reason of corrupt practices and substantial non compliance with the provisions of the Electoral Act 2010. See Section 138(1) (b) of the Electoral Act. 2010 (as amended). Ground (c) complains that the 1st Respondent was not duly elected by majority of lawful votes case. See Section 138(1) (c) of the Electoral Act 2010 (as amended). Ground (b) is aimed at challenging qualification, however the way it was couched and the facts in support of the ground, reveals a challenge as to who was the candidate sponsored for the election as between the 1st and 3rd Respondents, respectively. This therefore brings the ground within the realm of pre-election matters, which cannot be challenged before an election tribunal. It is however clear, from the petition, that it was anchored on three different grounds. The petition was therefore not solely based on ground (b) alone, which related to pre-election matters. The Tribunal was therefore in grave error when it struck out the petition on the ground that it was anchored on pre-election matters, without adverting its mind to other grounds upon which the petition is predicated. The proper thing would have been to strike out the ground relating to pre-election matters and the facts given in its support. PER ADAMU JAURO J.C.A
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
A. OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
1. HON. BONIFACE OKOYE
2. ALL PROGRESSIVES GRAND ALLIANCE Appellant(s)
AND
1. HON. GABRIEL OKOYE ONYENWIFE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. HON. PETER ONUORAH
4. PEOPLES DEMOCRATIC PARTY (PDP) Respondent(s)
ADAMU JAURO J.C.A (Delivering the Leading Judgment): The appeal herein is against the ruling of the National and State Houses of Assembly Election Petition Tribunal Anambra State, holden at Awka, delivered on 11th October, 2011 in petition number EPT/AN/HA/46/2011, wherein the said petition was struck out, on the ground that it raised pre-election matters.
By way of prologue, a summary of the facts giving rise to this appeal is hereby made thus: The Appellants as Petitioners filed a petition in the Tribunal on the 17th May, 2011 challenging the return of the 1st Respondent as the winner of the House of Assembly Election for Anyamelum Constituency Anambra State held on the 26th April, 2011.
The grounds upon which the petition was anchored are as follows:
“(a) The return of the 1st Respondent as the person elected was invalid by reason of corrupt practices and substantial noncompliance with the provisions of the Electoral Act 2010 and the Manual made thereunder.
(b) The 1st and 3rd Respondents were at the time of the election not qualified to contest the election as both were, contrary to the provisions of the Electoral Act, sponsored by one political party, to wit, the 4th Respondent.
(c) The 1st Respondent was not duly elected by majority of lawful votes cast.”
See paragraphs 7(a) – (c) of the petition at pages 3 – 4 of the record.
The particulars of the grounds of the petition were pleaded in paragraphs 8(A) – B(C) of the petition on pages 4 to 18 of the record. The petitioners in paragraph 10 of the petition claimed for the following reliefs:
“(i) That it be declared that the return of the 1st Respondent as the person elected at the election to the membership of the Anambra State House of Assembly for Anyamelum Constituency held on 26th April, 2011 is invalid by reason of corrupt practices and substantial non-compliance with the provisions of the Electoral Act 2010 and the Manual for Election Officials 2011 made pursuant to Section 153 of the Electoral Act.
(ii) That the return of the 1st Respondent as the winner of the said election is set aside and a re-run election ordered in the Constituency.
The Petitioners PRAY IN THE ALTERNATIVE
(i) That the election at Ama-Isiudala Polling Unit Code 010 Ifite-Ogwari Ward II, Central School II Polling Unit Code 015 Ifite-Ogwari Ward II, Umuereodili Square I Polling Unit Code 009 Igbakwu Ward, Obune Square III Polling Unit Code 008 Umumbo Ward, Ama Umu-Okpanta II Polling Unit Code 010 Omor Ward I, River Basin Unit Code 014 Omor Ward II, Urban Primary School II Polling Unit Code 005 Omor Ward II, Oye Market Square Polling Unit Code 001 Omor Ward II, Ama-Umunala I Polling Unit Code 005 Omor Ward III, Ama-Umunala II Polling Unit Code 006 Omor Ward III, Ama-Umunala III Polling Unit Code 007 Omor Ward III, Ama-Umunala IV Polling Unit Code 008 Omor Ward III, Ama-Isinkakwa Polling Unit Code 015 Omor Ward III, Ama-Aturia III Polling Unit Code 003 Omor Ward III, Ama-Aturia IV Polling Unit Code 004 Omor Ward III, Ama-Ituku Polling Unit Code 013 Omor Ward III, Ama-Ituku Polling Unit Code 014 Omor Ward III, Amaisi Ogwari Village I Polling Unit Code 008 Omor Ward II and Amaisi Ogwari Village Sqaure II Polling Unit Code 009 Omor Ward III and the results therefrom are void for corrupt practices and non-compliance with the Electoral Act.
(ii) That the election at Ifite Ogwari Ward I, Ifite Ogwari Ward II, Igbakwu Ward and Omor Ward I and results returned therefrom are void for non-compliance with the Electoral Act.
(iii) That the election at Umumbo Ward and results returned therefrom are void for corrupt practices and non-compliance with the Electoral Act.
(iv) An order that a re-run election be conducted at Ama-Isiudala Polling Unit Code 010 Ifite-Ogwari Ward II, Central School II Polling Unit Code 015 Ifite-Ogwari Ward II, Umuereodili Square I Polling Unit Code 009 Igbakwu ward, Obune square III Polling unit code 008 Umumbo Ward, Ama Umu-Okpanta II Polling unit code 010 Omor Ward I, River Basin I Polling unit code 014 Omor ward II, Urban Primary School II Polling Unit Code 005 Omor ward II, Oye Market square Polling unit code 001 Omor ward II, Ama-umunala I Polling Unit Code 005 Omor Ward III, Ama-Umunala II Polling Unit code 006 omor ward III, Ama-Umunala III Polling Unit Code 007 Omor Ward III, Ama-Umunala IV Polling Unit Code 008 Omor ward III, Ama-Isinkakwu Polling Unit Code 015 omor ward III, Ama-Aturia III Polling Unit Code 003 Omor Ward III, Ama Aturia IV Polling Unit Code 004 Omor Ward III, Ama-Ituku Polling Unit Code 013 Omor Ward III, Ama-Ituku Polling Unit Code 014 Omor Ward III, Amaisi Ogwari Village Sqaure I Polling Unit Code 008 Omor ward II and Amaisi Ogwari Village Sqaure II Polling Unit Code 009 ward III, Ifite Ogwari ward I, Ifite Ogwari Ward II, Igbakwu Ward and Omor Ward and Umumbo Ward.”
On being served the petition, all the Respondents filed their respective replies, thereafter the 1st Respondent by a motion dated 22nd June, 2011 prayed inter alia for the striking out of the petition for being incompetent. The Appellants as petitioners filed a counter affidavit in opposition to the application. The Tribunal after hearing the application granted the prayers sought by the 1st Respondent and struck out the petition.
Distressed by the aforementioned ruling, the Appellants challenged same vide a notice of appeal dated 28th October, 2011 and filed on the 29th October, 2011. The notice of appeal is anchored upon two grounds of appeal and the said grounds and their particulars are hereby reproduced, thus:
Ground One
The Tribunal erred by holding that the averment in paragraphs 7(b), 8(d), (i), (ii), (iii), (iv), (vi), (vii) and (viii) of the petition raised intra Party matters.
PARTICULARS OF ERROR
(i) Non qualification of a person returned as winner of an election is a ground for bringing an election petition.
(ii) The paragraphs of the petition in question contain some of the acts of non compliance and malpractices that took place in the election in support of the ground of the petition that the election was invalid due to non compliance with the provisions of the Electoral Act 2010.
GROUND TWO
The Tribunal erred by striking out the petition on the basis that paragraphs 7(b), 8(d), (i), (ii), (iii), (iv), (vi), (vii) and (viii) raised pre-election matters.
PARTICULARS OF ERROR
(i) The grounds of the petition that the election was invalid by reason of corrupt practices and substantial non compliance with the provision of the Electoral Act 2010 in the conduct of the election and that 1st Respondent did not score the majority of lawful votes cast at the election were not challenged in the motion ruled upon by the Tribunal.
(ii) There were other paragraphs of the petition that will sustain the said grounds not challenged in the motion.”
See page 443 of the record.
In compliance with the Rules of Court and Election Tribunal and Court practice Direction 2011, briefs of argument were filed and exchanged. The Appellants brief of argument dated 30th November, 2011 and filed on 1st December, 2011. The Appellants also filed a Reply brief of argument dated 7th December, 2011 and filed on the same date.
The 1st Respondent’s brief of argument is dated 4th December 2011 and filed on the 5th December, 2011. The 2nd Respondent’s brief of argument is dated 5th December, 2011 and filed on the same day. The 3rd Respondent’s brief is dated 3rd December, 2011 and filed on 5th December, 2011. The 4th Respondent’s brief is dated 5th December, 2011 and filed on the same date.
Mr. A.C. Anaenugwu leading O.M. Onyia Esq., for the Appellants, adopted and relied on the two briefs of the Appellants in urging the court to allow the appeal. Learned counsel referred to the unreported decisions of the Supreme Court in SC381/2011 and SC383/2011, PDP v. Daniel Saror & Ors. and Hon, Gabriel Suswam v. Daniel Saror & Ors. delivered on 28th November, 2011 to the effect that qualification is a ground for supporting a petition. Mr. Arthur Obi Okafor SAN leading E.A. Ahuchogu Esq., for the 1st Respondent adopted and relied on the 1st Respondent’s brief in urging the court to dismiss the appeal. Learned senior counsel submitted that the cases of PDP v. Saror and Suswam v. Saror related to Certificate forgery, hence distinguishable from the case at hand. Learned senior counsel relied on Umeoji v. Azodo, CA/E/EPT/16/2011. Mr. Emeka Ajaegbo for the 2nd Respondent adopted and relied on the 2nd Respondents brief in urging the court to dismiss the appeal. Learned counsel submitted that the Supreme Court decision cited does not apply to the case. Mr. Emeka Agbapuonwu leading Emeka Mofumamaya Esq., for the 3rd Respondent adopted and relied on the 3rd Respondent’s brief in urging the court to allow the appeal. Mr. Clems Ezika leading Nicholas Asuzu Esq., for the 4th Respondent adopted and relied on the 4th Respondent’s brief in urging the court to dismiss the appeal.
The Appellants distilled a single issue for determination on page 7 of their brief, as follows
“Whether the decision of the Tribunal that the petition raised pre-election matters and its striking out of the petition was right.”
The 1st Respondent also formulated a sole issue for determination on page 3 of his brief, namely:
“Whether the Tribunal below was right in holding that the petition raised pre-election matters not justiciable before the Tribunal and thereby striking out the petition.”
The 2nd Respondent on page 4 of its brief of argument also distilled a lone issue for determination, to wit:
“Whether the Tribunal was right in striking out the petition filed by the Appellants.”
The 3rd Respondent nominated a single issue for determination on page 4 of his brief as follows:
“Whether the lower Tribunal was right to strike out the petition on the facts and circumstances of the Petition.”
The 4th Respondent raised a sole issue for determination on page 1 of its brief thus:
“Whether the decision of the Tribunal that the petition raised pre-election matters and its striking out of the petition was right.”
All the issues for determination as distilled by the parties are identical; hence the sole issue as distilled by the Appellant will be adopted in resolving this appeal.
Learned counsel for the Appellant stated that Section 285(1) of the 1999 Constitution (as amended) makes provision for jurisdiction of the Tribunal, while section 138(1) of the Electoral Act 2010 (as amended) listed the grounds upon which a petition may be anchored.
Learned counsel submitted that the said grounds in the petition are legitimate grounds for bringing an election petition under Section 138(1) of the Electoral Act 2010. Learned counsel contended that the grounds in the petition together with the reliefs sought, challenged the validity of the election of the 1st Respondent. Learned counsel further submitted that the averment in paragraph 7(c), to the effect that 1st Respondent did not win by majority of lawful votes can on its own sustain the petition. In support, reference was made to Aregbosola v. Oyinlola (2011) 9 NWLR (pt. 1253) 458 at 556 – 558, Omoboriowo V. Ajasin (1984) 1 SCNLR 1. Learned counsel posited that the Tribunal was wrong in holding that the petition raised pre-election matters, hence urged the court to resolve the issue in favour of the Appellants and allow the Appeal.
All the other Respondents except the 3rd Respondent who supported the appeal are of the view that the Tribunal was right in striking out the petition. The submissions of the 1st, 2nd and 4th Respondents, being identical in nature will be compressed and considered together at the same time. The submissions of the aforementioned three Respondents is to the effect that the substance of the Appellants complaints in the petition in that the 1st and 3rd Respondents are not qualified to contest the election on grounds of invalid sponsorship. It was further contended by the three Respondents that when the issue of qualification of a candidate is tied to nomination and sponsorship, it remains a pre-election matter over which election Tribunal has no jurisdiction. In support, reference was made to Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227 at 310, ANPP v. Argungu (2009) 17 NWLR (Pt. 1171) 445 at 464, Zaranda v. Tilde (2008) 10 NWLR (Pt.1094) 184, Ucha v. Onwe (2011) 4 NWLR (Pt. 1237) 386 at 427, Adeogun v Fashogbon (2008) 17 NWLR (Pt.115) 149, Agbakoba v. INEC (2008) 12 SC (Pt. 111) 237, Onuoha v. Okafor (1983) 2 SCNLR 244. In concluding, the three Respondents urged the court to resolve the lone issue in their favour and dismiss the appeal.
In a short reply on points of law, learned counsel for the Appellants submitted that a community reading of S.138 (1) of the Electoral Act and Section 106(d) of the 1999 Constitution, is to the effect that election can be challenged on ground of invalid nomination.
In support, reference was made to Balonwu v. Ikpeazu (2005) 1 LRECN 190 at 225 – 226, Adeogun v. Fashogbon (2005) 17 NWLR (Pt. 1115) 201, Dingyadi v. Wamako (2008) 17 NWLR (Pt. 1116) 395, Imam v. Sheriff (2005) 4 NWLR (Pt. 914) 80 at 168, PDP v. Saror and Suswam v. Saror (Consolidated Appeals) SC381/2011 and SC383/2011 of 28th November, 2011. Learned counsel urged the court to allow the appeal.
By Section 138(1) of the Electoral Act 2010 (as amended), qualification is undoubtedly a ground for challenging an election, in an election petition. See PDP v. Saror and Suswam v. Saror (Consolidated Appeals) Nos. SC 381/2011 and SC 383/2011 of 28th November, 2011. Furthermore, by Section 106(d) of the 1999 Constitution (as amended), before a person is qualified for election as a member of a State Assembly, he must be a member of a political party and sponsored by that Party.
I have studied the grounds in support of the petition and the reliefs sought in the petition. The said grounds and releifs had earlier been reproduced in this judgment. For ease of reference however, the said grounds will be further reproduced hereunder.
“(a) The return of the 1st Respondent as the person elected was invalid by reason of corrupt practices and substantial noncompliance with the provisions of the Electoral Act 2010 and the Manual made thereunder.
(b) The 1st and 3rd Respondents were at the time of the election not qualified to contest the election as both were, contrary to the provisions of the Electoral Act, sponsored by one political party, to wit, the 4th Respondent.
(c) The 1st Respondent was not duly elected by majority of lawful votes cast.”
Ground (a) above challenged the return of the 1st Respondent by reason of corrupt practices and substantial non compliance with the provisions of the Electoral Act 2010. See Section 138(1) (b) of the Electoral Act. 2010 (as amended). Ground (c) complains that the 1st Respondent was not duly elected by majority of lawful votes case. See Section 138(1) (c) of the Electoral Act 2010 (as amended). Ground (b) is aimed at challenging qualification, however the way it was couched and the facts in support of the ground, reveals a challenge as to who was the candidate sponsored for the election as between the 1st and 3rd Respondents, respectively. This therefore brings the ground within the realm of pre-election matters, which cannot be challenged before an election tribunal.
It is however clear, from the petition, that it was anchored on three different grounds. The petition was therefore not solely based on ground (b) alone, which related to pre-election matters. The Tribunal was therefore in grave error when it struck out the petition on the ground that it was anchored on pre-election matters, without adverting its mind to other grounds upon which the petition is predicated. The proper thing would have been to strike out the ground relating to pre-election matters and the facts given in its support.
Throwing more light on a similar situation, my noble lord, Lokulo-Sodipe JCA in APGA & Anor. V. Andy E. Uba & Ors. CA/E/EPT/18/2011 of 28th September 2011 had this to say on pages 23 to 24 of the judgment:
“This court has had cause to pronounce on the issue as to “what is a pre-election matter and whether such matters require to be heard on merit where preliminary objection had been raised in relation to them” in many of the decisions it had delivered in recent times. See (1) CA/E/EPT/05/2011 – DR MICHAEL E. ATOGWU (SAN) & ANOR V. SENATOR AYOGU EZE & ORS delivered on 5/9/2011.
(2) CA/E/EPT/03/2011: MRS MARGERY OKADIGBO V. PRINCE JOHN OKECHUKWU EMEKA delivered on 19/8/2011:
(3) CA/E/EPT/09/2011: PRINCE NICHOLAS UKACHUKWU V. ANDY EMMANUEL UBA & ORS. delivered on 9/9/2011 – PATRICK AMUZIE V. CHIZOR LAMBERT OBIGIGWE & ORS delivered on 9/9/2011 amongst others. In the above cited cases, this court has consistently held that pre-election matters are not suited for Election Petitions. An Election Petition is to challenge the undue election or undue return of the candidate declared as the winner of the election by INEC. When a petition throws up the issue as to which of two candidates of the same party that actually won an election, or was the proper or qualified candidate of the party in the election, then such a petition or averment in that regard inextricably raises pre-election matter; A petition that is firmly rooted or predicated on pre-election matter, the paragraph is to be struck out. I have given due consideration to the averment in paragraph 10(v) reproduced above, I am in complete agreement with the Tribunal that it raises the pre-election matter. I find the Tribunal to have correctly struck out the paragraph.”
Consequent upon the foregoing, the sole issue for determination is hereby resolved in favour of the Appellants. The ruling of the Tribunal dated 11th October, 2011 striking out petition number EPT/AN/HA/46/2011 is hereby set aside. The petition is hereby remitted for a hearing on the merit upon the other grounds that do not touch on pre-election matters. There will be no order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A: I agree.
A.O. LOKULO-SODIPE, J.C.A: I agree.
Appearances
Mr. A.C. Anaenugwu with O.M. Onyia Esq.For Appellant
AND
Mr. Arthur Obi Okafor SAN with E.A. Ahuchogu Esq., for the 1st Respondent.
Emeka Ajaegbo Esq., for the 2nd Respondent.
Emeka Agbapuonwu Esq., with Emeka Mofumamaya Esq., for the 3rd Respondent.
Clems Ezika Esq. with Nicholas Asuzu Esq., for the 4th RespondentFor Respondent
