HON.CHIKE ANYAONU V. HON. EUCHARIA AZODO & ORS.
(2011)LCN/4787(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of September, 2011
CA/E/EPT/07/2011
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTION 285(1) (A) AND (B) OF THE 1999 CONSTITUTION (SECOND ALTERATION) ACT AND SECTION 138(1) (A – D) OF THE ELECTION ACT 2010 (AS AMENDED)
Section 285(1) (a) and (b) of the 1999 constitution (Second Alteration) Act provides as follows: – 1. “There shall be established for the each state of the Federation and the Federal Capital Territory, one or more election tribunals to be known as the National and States Houses of Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether – (a) any person has been validly elected as a member of the National Assembly; or (b) any person has been validly elected as a member of the House of Assembly of a state.” For the Election Act 2010 (as amended) Section 138(1) (a – d) provides that:- (1)”An election may be questioned on any of the following grounds, that is to say:- (a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election; (b) that the election was invalid by reason of corrupt practices on non-compliance with the provisions of this Act; (c) that the respondent was not duly elected by majority of lawful votes cast at an election; (d) that the petitioner or it’s candidate was validly nominated but unlawfully excluded from the election.” To my mind, while Section 285(1) (a and b) made provisions for the establishment of election tribunals with exclusive jurisdiction to hear and determine actions or petitions that may arise after the conduct of an election simply referred to as ‘post election matters.’ Section 138(1)(a) and b) provides guidelines or grounds upon which an election may be questioned. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
JURISDICTION OF ELECTION TRIBUNAL: WHETHER ELECTION TRIBUNAL HAS THE JURISDICTION TO ENTERTAIN MATTERS ARISING FROM THE NOMINATION AND/OR SUBSTITUTION OF THE CANDIDATE OF A POLITICAL PARTY
In ODEDO VS INEC (2008) 17 NWLR (PT 1117) 554 at 602 the Supreme Court per Niki Tobi (JSC) had this to say:- “It is not my understanding of Section 285(i) (a) of the constitution that the subparagraph can accommodate pre-election matters. It is rather my understanding that the subparagraph provides for the determination of whether any person has been validly elected as a member of the National Assembly. In my humble view, the subparagraph provides for election matters which give rise to post election proceedings. As the reliefs sought by the appellant are pre election matters, Section 285(1)(a) could not avail him as that subparagraph does not provide for litigation arising from party primaries—–.” See also AGBAKOBA VS INEC (2008) 18 NWLR (PT 1119) 489 at 544 where the same Supreme Court per Chukwuma-Eneh (JSC) posited that:- “Section 285(1)(a) of the 1999 constitution deals with whether any person has been validly elected as a member of the National Assembly. The provision is clear and unambiguous and literally construed is concerned with post election disputes. Any dispute resulting from the conduct of an election is not a pre election dispute but a post election dispute.” See also AMECHI V INEC (2008) 5 NWLR (PT 1080) 227. This court in ZARANDA VS TILDE (2008) 10 NWLR (PT 1094) 184 at 210 has also held that the Governorship and legislative Houses Election Tribunal sitting in Bauchi had no jurisdiction to entertain a petition on a ground questioning nomination or substitution of a candidate for an election. In IBRAHIM VS INEC (1999) 8 NWLR (PT 614) 334 at 351 this court held thus: “It is abundantly clear from these provisions that the grounds recognized for the purpose of presenting an election petition are acts or omissions that was contemporaneous with the conduct of the election. Election tribunal has no power to investigate matters which took place before the conduct of the election.” In the recent case of UCHA VS ONWE (2011) 4 NWLR (PT 1237) 386. The issue for determination there was, whether having regard to the cause of action being and arising from the result of the 4th Respondent’s nomination exercise, the National Assembly Election Tribunal had jurisdiction to hear and determine the petition filed by the 1st Respondent. The Supreme Court per Tabai (JSC) after a thorough review of the relevant constitution provisions and Electoral Act as well as some authorities concluded thus at page 427:- “In view of the foregoing considerations and particularly having regard to the specific pronouncements of this court on the issue of proper venue for pre-election and post election matters in the cases which I have reviewed above and which I am bound to follow, I hold that the election tribunal had no jurisdiction to hear and determine the petition. The matter of the petitioner/1st Respondent’s nomination and/or substitution is a pre-election domestic matter of the PDP for which determination jurisdiction is vested in the Federal High court or the High Court of a state. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
JURISDICTION OF ELECTION TRIBUNAL: WHETHER THE ELECTION TRIBUNAL HAS NO JURISDICTION OVER A PERSON’S DISQUALIFICATION OR NON-QUALIFICATION BASED ON OR ARISING FROM THE DOMESTIC NOMINATION EXERCISE OF HIS POLITICAL PARTY
…the Supreme Court in UCHA VS ONWE supra at page 247 where it was stated that:- “Section 66(1) of the 1999 constitution makes specific provisions for a person’s disqualification or non-qualification for election to the Senate or the House of Representatives. These include: (a) the person’s voluntarily acquisition of the citizenship of a country other than Nigeria; (b) his having been adjudged a lunatic or an undischarged bankrupt; (c) his having been sentenced to death or to imprisonment for an offence involving dishonesty; (d) that he is a member of a secret society; (e) his having been indicted for embezzlement or fraud; (f) his presentation of a forged certificate to the Independent National Electoral Commission. Any of these disabilities spelt out in section 66 (1) of the constitution can properly constitute a ground upon which a person’s election can be questioned in an election petition. A person’s disqualification or non-qualification based on or arising from the domestic nomination exercise of his political party is a pre-election matter over which the Election Tribunal has no jurisdiction. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE A.A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
HON.CHIKE ANYAONU Appellant(s)
AND
1. HON. EUCHARIA AZODO
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. PEOPLES DEMOCRATIC PARTY Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A: (Delivering the Leading Judgment): The petition that led to this appeal was commenced at the National and State Houses of Assembly Election Petition Tribunal, Awka in Anambra State. The petition dated 24/5/2011 was filed on 25/5/2011. The Appellant, Hon. Chike Anyaonu was the petitioner in the trial tribunal and the 1st Respondent in this appeal was also the 1st Respondent in the trial tribunal. The grounds relied upon for the petitions were stated in paragraph 12(i) – (xiv) as follows:-
12. Your petitioner further states that the grounds upon which this Petition is predicated are as follows:-
i) That the 1st Respondent was not a candidate in the election.
ii) That the 1st Respondent did not and cannot participate in the election.
iii) That the 1st Respondent at the time of the election was not qualified to contest the same in that the 1st Respondent was not sponsored in the election by any registered political party in Nigeria as the law required.
iv) That the 3rd Respondent, a registered political party had sponsored only the petitioner as its candidate in the election and not any other person including the 1st Respondent.
v) That the 1st Respondent did not poll any vote cast at the election.
vi) That the 1st Respondent was not duly elected by majority of lawful votes cast at the election and ought not to have been declared or returned as elected.
vii) That the 1st Respondent could not have been rightfully declared a winner in the election nor would the Honourable Tribunal be expected to declare him winner in an election she had fully not participated in all the stages of the said election.
viii) That the Petitioner being the candidate of the 3rd Respondent in the election ought to have been returned as elected having scored the majority of lawful votes cast at the election.
ix) Your Petitioner emerged the 3rd Respondent’s lawful candidate in the election for the Aguata Federal Constituency upon your Petitioner’s fulfillment of all conditions precedent for your petitioner’s nomination and sponsorship as such candidate by the 3rd Respondent.
x) That the 3rd Respondent filed the 3rd Respondent’s List of Nominated candidates in INEC Form wherein the 3rd Respondent listed the name of the Petitioner as her candidate in the April 2011 election into membership of the National Assembly in the Aguata Federal Constituency. Similarly, the 3rd Respondent filed the INEC Form for Submission of Names of Candidates by Political Party listing the name of your Petitioner as her candidate in the April 2011 election into membership of the National Assembly in the Aguata Federal Constituency.
xi) Your Petitioner states that the 3rd Respondent’s List of Nominated Candidates in INEC Form and the INEC Form for submission of Names of Candidates by Political Party listing the name of your Petitioner as her candidate referred to in paragraph 12 (x) of the petition were duly submitted by the 3rd Respondent to the 2nd Respondent indicating that your Petitioner is the nominated and sponsored candidate of the 3rd Respondent in the said election.
xii) That the 2nd Respondent in turn was under a duty imposed by law to accept and acknowledge the Petitioner as the 3rd Respondent’s candidate in the said election.
xiii) That sometime in February 2011 when the 2nd Respondent wanted to play game and purport to deny the candidature of the Petitioner in the aforesaid election, the 3rd Respondent by a letter from her National Legal Adviser dated 14/2/2011 and addressed to INEC Chairman Professor Attahiru Jega made a protest which protest was followed up by another letter to the 2nd Respondent from the same National Legal Adviser of the 3rd Respondent and dated 3rd March 2011.
xiv) That the 1st Respondent was thus erroneously wrongfully declared winner of the election with 14,590 votes, even as those votes were not due to the 1st Respondent but the Petitioner.
The Petitioner at paragraph 20 thereof then sought for the following reliefs:-
20. Wherefore your Petitioner prays the Honourable Tribunal for the following reliefs:-
i) That the 1st Respondent was not duly elected/returned and did not participate in the election and ought not to have been declared as elected in the said Aguata Federal Constituency Election concluded on the 6th day of May 2011.
ii) That the Petitioner is the person validly elected as member of the National Assembly to represent Aguata Federal Constituency in the election concluded on 6th May 2011 since the majority of lawful votes had been cast for the Petitioner as the candidate of the Peoples Democratic Party in the said election.
iii) An order of the tribunal withdrawing and/or canceling the certificate of return unlawfully and illegally issued to the 1st Respondent as the winner of the election.
iv) An Order of the Tribunal that the Petitioner be declared as validly elected and returned in the House of Representatives Election in the Aguata Federal Constituency of Anambra State aforesaid and be issued with a certificate of return for the election by the 2nd Respondent.
The 1st Respondent in his reply to the petition dated and filed on 16/6/2011 also included therein a notice of preliminary objection contending that the petition is incompetent and ought not to be considered on the merits.
The grounds for the objection read thus:-
1. The petition is founded on matters squarely on pre-election disputes.
2. The matters so raised in the petition do not qualify as grounds specified by the Electoral Act 2010 (as amended) and the constitution of the Federal Republic of Nigeria 1999 (as amended) for questioning the validity of an election.
3. The Petitioner lacks the locus standi to present this petition as he was not a candidate therein and did not take part in the election. As at the date of the election and till now, the petitioner with others, is in the Federal High court, Awka in Suit N0. FHC/AWK/CS/05/2011 seeking a declaration that he was entitled to be the candidate of the 3rd respondent in the election now being challenged.
4. The Petition is an abuse of process of the tribunal, in view of the pendency of (S.C) the Federal High court, Awka in Suit NO. FHC/AWK/CS/05/2011.
5. This Honourable Tribunal lacks the jurisdiction to adjudicate over matters on which the petition is predicated.
The 2nd Respondent also filed a reply to the petition on the 15/6/2011 wherein he also raised a preliminary objection on the same ground as that of the 1st Respondent. Subsequently on the 27/6/11 the 1st Respondent filed a motion on notice brought pursuant to Section 285(1) of the 1999 constitution and Section 137 of the Electoral Act 2010 (as amended) wherein he prayed the Tribunal to strike out the petition for want of competence.
The grounds as stated therein are as follows:-
1. The subject matter of the petition is a pre-election dispute between the parties which the Honourable Tribunal does not have the jurisdiction to entertain.
2. The matter raised in the petition do not qualify as grounds specified by the Electoral Act 2010 (as amended) and the constitution of the Federal Republic of Nigeria 1999 (as amended) for questioning the validity of an election.
3. The Petitioner lacks the locus standi to present the petition as he was not a candidate at the election and did not take part in the election.
The motion was supported by a 5 paragraph affidavit and a written address. The petitioner (now appellant) also reacted by filing a 9 paragraph counter affidavit with a written address in support. The 1st Respondent also responded by filing a reply on points of law.
On the 7/7/2011 parties adopted their written addresses and thereafter the trial tribunal on the same day delivered a considered ruling wherein it granted the motion and struck out the petition on the ground that it is a pre-election matter. Being dissatisfied with the said Ruling the appellant filed Notice of appeal with three grounds of appeal on the 26/7/2011.
In accordance with the provisions of the relevant Rules of court and the Practice Direction 2011. Briefs of argument were subsequently filed and exchanged by the parties who eventually adopted and relied on their respective briefs and replies at the hearing of the appeal on 19/8/2011.
The appellant’s brief of argument dated 9/8/2011 and filed on 10/8/2011 was settled by Ejike Efobi Esq. The 1st Respondent’s brief of argument dated 14/8/11 and filed on 15/8/11 was settled by Arthur Obi Okafor SAN.
That of the 2nd Respondent dated 13/8/11 and filed on 15/8/11 was settled by Alhaji S.O. Ibratrim while the 3rd Respondent’s brief of argument dated 15/8/11 and filed on 17/8/11 was settled by Clems Ezika (Esq).
In the Appellant’s brief of argument one sole issue was distilled from the three grounds of appeal for determination as follows:-
“Whether the petition of the appellant is competent and within the jurisdiction of the Honourable Tribunal”?
The 1st Respondent also formulated one issue for determination. To wit:-
“‘Was the tribunal below right in striking out the petition for having raised the issue of nomination and sponsorship of candidates which is a matter falling within the purview of the internal and/or domestic affairs of the party.”
A sole issue was equally raised by the 2nd Respondent in her brief of Argument as follows;-
“Whether the Honourable Tribunal was not right in declining jurisdiction to entertain the appellant’s petition having found same to be predicated on Pre-election matter.”
The one issue also raised by the 3rd Respondent in her brief of argument was:-
“Whether the present petition is competent for the Honourable court to assume jurisdiction.”
I have carefully gone through the grounds of appeal vis-a-vis the issues distilled by the parties for determination and on it is my view that the sole issues raised by the parties are similar but I will adopt that of the 2nd Respondent in the consideration of this appeal.
For the Appellant, it was submitted inter alia by Ejike Efobi of counsel that the jurisdiction of court is determined by reference to the plaintiff s claim or relief sought as endorsed on the writ of summons and the statement of claim. In other words it is the claim before the court that has to be examined in order to ascertain whether or not it comes within it’s jurisdiction. He referred to the following cases:-
INEC VS LSBIR (2011) 4 NWLR (PT 1237) 318; ENEMUO VS DURU (2006) ALL FWLR (PT 304) 508; NEPA VS EDEGBENRO (2003) 18 NWLR (PT 789) 79; ACHFBE VS NWOSU (2003) NWLR (PT 818) 103; ABDUL HAMID VS AKAH (2006) 13 NWLR (PT 996) 127.
Learned counsel referred to the reliefs sought by the appellant in the petition and Section 133(1) of the Electoral Act 2010 to contend that a community reading of the two presents a harmony and agreement between the relief sought and the expectations of the Electoral Act 2010 on the appellant seeking to pursue his grievance through an Election petition.
Learned counsel also referred to Section 87(10) of the Electoral Act 2010 to argue that an action under the Electoral Act 2010 is not a pre-election matter, if it is outside the jurisdiction conferred by Section 87(10) of the Act. In otherwords, he says, Section 87(10) of the Electoral Act 2010 does not extend to issues arising as in this petition from allegation on non possession of complete constitution requirements qualifying a person for election into the House of Representatives which in the instant case is characterized by the 1st Respondent’s destitute status as it affects party sponsorship.
Learned counsel then at page 7 paragraph 4:12 of the appellant’s brief of argument raised an all important question that:-
“Which court has jurisdiction in a situation where a petitioner has in an election petition alleged that the person returned is not qualified to contest the election having not been sponsored by any political party as the law requires.”
He then submitted that the provision of Section 87 (10) of the Electoral Act has no application as a different set of laws are applicable for the redressing of any such grievance that border on qualification. He added that there is no other form of qualification (apart from Section 65 of the 1999 constitution) required of a person for election as a member of National Assembly and Section 138(1)(a) of the Electoral Act has provided that want of that qualification as at the time of election is a good ground for questioning an election. Consequently, the petitioner’s petition bordering on 1st Respondent’s non possession of comprehensive constitutional qualification at the time of the election is outside the purview of Section 87(10) of the Electoral Act.
Learned counsel also argued that all the judicial authorities relied on by the trial tribunal including UCHA VS ONWE (2011) 4 NWLR (PT 1237) 386 and KOLAWOLE VS FOLUSHO (2009) 50 WRN 68 in concluding that the issues raised in the petition are pre-election matters are not relevant to the issues in this appeal having regard to the provisions of Section 87(10) of the Electoral Act 2010.
He contended that the entirety of the claim of the Petitioner in his petition relate only to whether the 1st Respondent was validly elected as a member of House of Representatives in the Aguata Federal Constituency. It was the further submission of learned counsel that it was wrong for the trial tribunal to hold that the petition of the appellant was an invitation upon the tribunal to shoes a candidate for a political party.
He added that the jurisdiction of the tribunal is not synonymous with the proof of the claim before the tribunal by the petition and cited the case of OJO VS. INEC (2008) 13 NWLR (PT 1105) AT 627.
For the 1st Respondent, Arthur Obi Okafor of learned Senior counsel referred to the cases of AMECHI VS INEC (2008) 5 NWLR (PT 1080) 227 at 310 and ODEDO VS INEC (2008) 17 NWLR (PT.1117) 554 to assert that the supreme court has clearly postulated that there is a dichotomy between pre-election and post election matters. Wherein pre-election matters are limited to the regular courts while post election matters are entertained by the Election Petition Tribunals.
Learned counsel then referred to the conclusion of the trial tribunal in it’s ruling at page 742 of the Record of Appeal, which specific conclusion the appellant did not appeal against. He added that the appellant seems to be laying more emphasis on the reliefs being sought with little regard to the cause of action and submitted that where the cause of action is outside the jurisdiction of the court, a court cannot lawfully on the basis of the reliefs assume jurisdiction in the matter. Furthermore he says, both the reliefs sought and the cause of action being pursued must come within the competence of a court before the said court can assume jurisdiction over the matter, because it is not enough to contend that the reliefs are within the court’s jurisdiction when the same court lacks jurisdiction to look into the cause of action.
Learned Senior counsel then submitted that where the appellant is claiming that INEC was playing games with him and denying his candidature for which he protested, it means that INEC has not ostensibly cleared or confirmed him as a candidate. He cited in support PPA VS. SARAKI (2007) LRECN 138 at 169 for the definition of a candidate and concluded thereat that the appellant cannot lawfully lay claim to being the candidate of PDP when he did not show in his petition that his candidature was prima facie cleared or confirmed by INEC. He also referred to paragraph 13 of the Appellant’s petition where he pleaded a host of INEC nomination forms and documents from PDP allegedly submitted to the 2nd Respondent with a view to establishing that he was a candidate duly nominated and sponsored by PDP as opposed to the 1st Respondent who was also laying claim to the candidature of the same PDP. He then submitted that under the circumstance, the trial tribunal was right with it’s finding as contained in it’s ruling at page 743 of the Record.
Learned Senior counsel was also of the assertion that since the appellant did not challenge the finding of the trial tribunal that both he and the 1st Respondent are laying claim to the sponsorship of the PDP for the election, the issue in the petition is whether the 1st Respondent was rightly returned under the platform of PDP in the face of the appellant’s claim that he (the appellant) was the one duly nominated by the PDP for the election. The scenario he says, becomes an issue for the regular courts to resolve in which case the provisions of Section 87(10) of the Electoral Act 2011 (as amended) comes into play to the exclusion of the trial tribunal.
Learned Senior counsel also referred to the following authorities cited by the appellant to submit that they do not meet the exigencies of the appeal and as such not helpful to the appellant. They are:-
SUNDAY VS INEC (2009) 12 NWLR (PT 1154) 194 at 216; P.P.A. VS. SARAKI (2007) 17 NWLR (PT 1064) 453 at 493; OJO VS INEC (2008) 13 NWLR (PT 1105) 577; INEC VS A.C. (2009) 9 NWLR (PT 1126) 524 at 558 – 559.
The 2nd Respondent through her counsel, S.O. Ibrahim Esq, in response, referred to Section 285(a) and (b) of the 1999 constitution and Section 138(1) of the Electoral Act to submit that they cannot accommodate pre-election matters. He added that anyone invoking Section 138(1) of the Electoral Act 2010 (as amended) must satisfy Section 137(1) (a) and (b) of the same Act which is a condition precedent for invoking Section 138(1). He cited in support the case of AGBAKOBA VS INEC (2008) 18 NWLR (PT 1119) 489 AT 536 and 545.
Learned counsel also referred to the portion of the Ruling of the trial tribunal at pages 742 to 743 of the Record to submit that it rightly found that it is not the function of election tribunals to probe into pre-election matters. He added that a perusal of the appellant’s averment in the petition, the last of documents and his witnesses written statement on oath, there is no iota of doubt that the appellant petition was premised on pre-election matter. Learned counsel also cited in support the following cases:-
ODEDO VS INEC (2008) 17 NWLR (PT 1117) 554 at 602; KOLAWOLE VS FOLUSHO (2009) 8 NWLR (PT 1143) 338 at 396 and UCHA VS ONWE (2011) 4 NWLR (PT 1237) 386; IBRAHIM VS INEC (1999) 8 NWLR (PT 614) 34 at 35; ADEOGUN VS FASHOGBON (2008) 17 NWLR (PT 1115) 149; JANG VS DARIYE (2003) 15 NWLR (PT 843) 436; ANPP VS ARGUNGU (2009) 17 NWLR (PT 1171) 445; OKOLI VS UDEH (2008) 10 NWLR (PT 1095) 213 and ZARANDA VS TILDE (2008) 10 NWLR (PT 1094) 184.
He added that the whole purport of Section 87(10) and 11 of the Electoral Act 2010 (as amended) is to discourage pre-election matters from being filed in the Election petition Tribunals.
For the 3rd Respondent in her brief of argument, Clems Ezika of counsel submitted inter alia that Petitioner was the candidate of the 3rd Respondent before the election and participated in the said election and ought to be returned by the 2nd Respondent. He added that the 2nd Respondent lacks the power to choose candidate for the 3rd Respondent and the position of the law is settled in PPA VS SARAKI (2007) 17 NWLR (PT 1064) 453 AT 493; INEC VS ACTION CONGRESS (2001) 2 NWLR (PT 1126) 524 at 558; SUNDAY VS INEC (2009) 12 NWLR (PT 1154) 266. He then urge the court to hold that the tribunal has jurisdiction to entertain the petition.
The appellant in response also filed replies to the 1st 2nd and 3rd Respondent’s briefs of argument and his reaction therein will be taken into due consideration.
Now, I have earlier in this judgment reproduced the grounds for the petition of the appellant in the trial tribunal, in addition, I herein below reproduce paragraphs 1 to 7 of the petition for purposes of clarity.
1. Your Petitioner, Hon. Chike Anyaonu, a member of the Peoples Democratic Party, was a candidate in the National Assembly Election for the Aguata Federal Constituency of Anambra State. Your Petitioner was duly nominated and sponsored by his political party, the Peoples Democratic Party (PDP) as her candidate for the National Assembly Election for the Aguata Federal Constituency in Anambra State.
2. The 1st Respondent was returned by the 2nd Respondent albeit erroneously wrongfully as the person elected and returned in the National Assembly Election for Aguata Federal Constituency of Anambra State. The 1st Respondent’s return aforesaid was also purported by the 2nd Respondent to be on the platform of the Peoples Democratic Party (PDP).
3. The 2nd Respondent is a creation of statute and is charged by the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2010 (as amended) with the responsibility inter -alia to organize, undertake and supervise the conduct of transparent elections into various elective offices including the Anambra State Legislative House, Governorship, National Assembly and Presidential election in Nigeria.
4. The 2nd Respondent is also by law vested with the right to have submitted to it and to receive from the national office of any registered political party and in the prescribed forms, the list of the candidates such registered political party proposes to sponsor at any election(s).
5. The 3rd Respondent, Peoples Democratic Party (PDP) is a registered political party that participated in the 2011 general elections.
6. Your Petitioner states that his right to present this petition arises from the fact that he was the lawful candidate of the Peoples Democratic Party (PDP) in the aforesaid election which was contested and who had also actually contested in the election winning the election with 14,590 votes which votes were erroneously wrongfully credited to the 1st Respondent who was not the candidate of Peoples Democratic Party in the election and did not participate in the election.
7. Your Petitioner avers that in the Election into the membership of the National Assembly, Aguata Federal Constituency Anambra State held on the 9th day of April 2011 whereupon the said election was inconclusive and a re-run carried out and conducted in respect thereof on the 6th day of May 2011 and at the conclusion of the collation, even though the 1st Respondent was not nominated and sponsored by the 3rd Respondent or indeed any registered political party at all, the following result erroneously strangely was declared by the Constituency Returning Officer of the 2nd Respondent thus:
i. Douglas Emeka A. of Accord Party (a) – 1409 (One thousand four hundred and nine) votes.
ii. Engr. Bart Nwibe of Action Congress of Nigeria (ACN) – 5708 (Five thousand seven hundred and eight) votes.
iii. Rev. Kenneth Anozie of African Democratic Congress (ADC) – 109 (One hundred and nine) votes.
iv. Nwandu Unoma K. of All Nigeria Peoples Party (ANPP) – 177 (One hundred and seventy seven) votes.
v. Hon. Chukwuma Umeoji of All Progressives Grand Alliance (APGA – 8282 (Eight thousand two hundred and eighty two) votes.
vi. Victor Chidi O. of Congress for Democratic Change (CDC)- 954 (Nine hundred and fifty four) votes.
vii. Hon. (Mrs) Ndidi Okoye of the Congress for Progressive Change (CPC) – 954 (Nine hundred and fifty four) votes.
viii. Hon. Greg Chukwuma of Labour Party (LP) – 104 (One hundred and four) votes.
ix. Hon. Eucharia Azodo of Peoples Democratic Party (PDP) – 14,590 (Fourteen thousand five hundred and ninety) votes.
x. Obiora Emmanuel of Progressive Peoples Alliance (PPA) – 86 (Eighty six) votes.
Now the appellant in his brief of argument at page 7 paragraph 4.12 raised a very pertinent but salient question which can conveniently resolve this appeal without much ado and it flows from his issue for determination.
It reads:-
4:12: “The question that should agitate this honourable court is, which court has jurisdiction in a situation where a petitioner has in an Election petition alleged that the person returned is not qualified to contest the election having not been sponsored by any political party as the law requires, the implication of which will include that such person not being a lawful or qualified candidate could not have scored any valid vote in the election.”
The constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2010 (as amended) have graciously assisted this court in providing answers to the above question and I will now have recourse to the relevant sections.
Section 285(1)(a) and (b) of the 1999 constitution (Second Alteration) Act provides as follows:-
1. “There shall be established for the each state of the Federation and the Federal Capital Territory, one or more election tribunals to be known as the National and States Houses of Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether –
(a) any person has been validly elected as a member of the National Assembly; or
(b) any person has been validly elected as a member of the House of Assembly of a state.”
For the Election Act 2010 (as amended) Section 138(1) (a – d) provides that:-
(1)”An election may be questioned on any of the following grounds, that is to say:-
(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) that the election was invalid by reason of corrupt practices on non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by majority of lawful votes cast at an election;
(d) that the petitioner or it’s candidate was validly nominated but unlawfully excluded from the election.”
To my mind, while Section 285(1) (a and b) made provisions for the establishment of election tribunals with exclusive jurisdiction to hear and determine actions or petitions that may arise after the conduct of an election simply referred to as ‘post election matters.’
Section 138(1)(a) and b) provides guidelines or grounds upon which an election may be questioned. The appellant’s contention is that he is the rightful candidate of the PDP for the Aguata Federal Constituency of Anambra State in the National Assembly election held on 9/4/11 and rerun held on 6/5/2011. But the 1st Respondent was returned by the 2nd Respondent as the winner of the said election on the platform of PDP.The trial tribunal in its Ruling delivered on 7/7/2011 found as follows:-
“The starting point of resolving this issue is reading paragraphs 1 and 2 of the petition. Paragraphs 1 and 2 of the petition reads as follows:-
1. Your petitioner Hon. Chike Anyaonu, a member of the Peoples Democratic Party was a candidate in the National Assembly of Anambra State. Your Petitioner was duly nominated and sponsored by his political party the Peoples Democratic Party (PDP) as her candidate for the National Assembly Election for Aguata Federal Constituency in Anambra State.
2. The 1st Respondent was returned by the 2nd Respondent albeit erroneously as the person elected and returned in the National Assembly Election for Aguata Federal Constituency of Anambra State. The 1st Respondent’s return aforesaid was also purported by the 2nd Respondent to be on the platform of the Peoples Democratic Party (PDP).”
From the above 2 paragraphs of the petition, both the petitioner and the 1st Respondent are claiming to have contested the election on the same platform of PDP. From the documents put before us in this petition, both are products of two parallel party congresses, held on the same date but headed by two different persons for the same constituency.
This makes the petition to be, who as between the petitioner and the 1st Respondent was the genuine candidate chosen by their party.”
I cannot but agree with the above finding of the trial tribunal and the resolution of the issue of the proper candidate for the party can only be done by the regular courts and this places it within the sphere of pre-election dispute. Try as the appellant could, the fact that there was a controversy within the PDP as to who it’s candidate for election into Aguata Federal Constituency was cannot be successfully concealed or trivialized through the finesse of advocacy. Concrete proofs pointing to that reality are in the record of appeal. I will now mention a number of them.
In paragraph 12(xiii) of his petition the appellant averred as follows:-
“That sometime in February, 2011 when the 2nd Respondent wanted to play game and purport to deny the candidature of the petitioner in the aforesaid election, the 3rd Respondent by a letter from her National legal adviser dated 14/2/2011 and addressed to INEC chairman Professor Attahiru Jega made a protest which protest was followed up by another letter to the 2nd Respondent from the National legal Adviser of the 3rd Respondent and dated 3rd March 2011.”
The 2nd Respondent (INEC) in her Reply to the petition averred in paragraph 12(e), (m), (n), (p) and (u) as follows:-
(e) Paragraph 12(x), (xi), (xii), xiii) and (xiv) of the petition are false and in answer them to the 2nd Respondent avers that the National Executive Committee (NEC) of the 3rd Respondent did not conduct any primaries for the election in question as envisaged by the Electoral Act 2010 and the constitution of the 2nd Respondent.
(m) Pursuant to the powers of the 2nd Respondent under the constitution, the 2nd Respondent had directed that the only state executive committee in Anambra State which the 2nd Respondent recognized pursuant to the judgment of the High Court of the Federal Capital Territory was that led by Benji Udeozor.
(n) The 2nd Respondent notified the 3rd Respondent of its decision and directed that the only primaries for the nomination of candidates which it would monitor and recognize in Anambra State was that to be organized by Benji Udeozor led Executive Committee. All correspondences between the 2nd and 3rd Respondents relating to or connected with the holding of congresses and primaries for the election of candidates of the 3rd Respondent for the National Assembly elections, Delegates to the primaries and election of the party officers are hereby pleaded and shall be relied upon at the trial.”
(p) The 2nd Respondent made it clear at the earliest opportunity to the 3rd Respondent that it would be guided by the judgment of the High court of the Federal Capital Territory in Suit No. FCT/ABJ/CV/42/2009. Benji Udeozor & Ors Vs PDP & Ors delivered on 6th October 2010. The judgment is hereby pleaded and shall be relied upon at the trial.
(u) The 2nd Respondent was also guided by the order of the High Court of Anambra State made on 12th January 2011 which directed that both the PDP and INEC should use the list of candidates issued by the Benji Udeozor Executive Committee after the congress if organized.”
Furthermore, a perusal of the Record of appeal show that the appellant in his petition pleaded the following list of documents. (See pages 20 to 22 of Record).
LIST OF DOCUMENTS
i) Letter to the National Chairman of the Peoples Democratic Party in respect of Anambra National Assembly Primary elections signed on 9th January 2011 by Senator J.K. WAKU and members of his committee forwarding the list of the 3rd Respondent’s National Assembly candidates in Anambra State for the April 2011 general election and which letter contain the petitioner’s name as the winner of the primary for the Aguata Federal Constituency.
ii) Letter of the National Chairman of the 3rd Respondent by which letter the names of the petitioner and others were submitted to the 2nd Respondent (INEC) as the 3rd Respondent’s candidates in diverse constituencies in the April 2011 election.
iii) Minutes of the meeting of the National Working Committee of the PDP held on 30/1/2011 at National Secretariat of the party Wadata Plaza Abuja whereof candidates of the party for the 2011 elections were approved or ratified.
iv) 3rd Respondent’s List of Nominated Candidates for April 2011 Election in INEC Form E.C. 25C (iii) submitted to the 2nd Respondent by the 3rd Respondent.
v) INEC Form for Submission of Names of Candidates by a Political party for April 2011 election submitted by the 3rd Respondent to the 2nd Respondent.
vi) The document declaring the result of election in Aguata Federal Constituency dated 6th May 2011 purportedly declaring the 1st Respondent winner of the election and the INEC summary of result in the election.
vii) Letter of Alhaji Kaugama of INEC dated 10/2/2011 to the National Chairman of the PDP.
viii) Letter dated 14/2/2011 addressed to INEC Chairman Professor Attahiru Jega by the National Legal Adviser of the PDP, Chief Olusola Oke.
ix) Peoples Democratic Party Constitution 2009 (as amended), Electoral Guideline for Primary Elections 2010 of PDP and INEC Guidelines.
x) Letter dated 3rd March 2011 addressed to INEC Chairman Professor Attahiru Jega by the National Legal Adviser of the PDP, Chief Olusola Oke.
xi) Nomination forms/Personal Particulars CF.001 and E.C.4B (iv) of the Petitioner dated 30/1/2011 and submitted to INEC.
xii) Result of the National Assembly Primary election of the Peoples Democratic Party bearing out that the petitioner emerged winner in the election, a copy of which result was issued to your Petitioner.
xiii) Affidavit in support of personal particulars of the Petitioner submitted also to INEC (Form CF 001).
xiv) Originating process in suit N0. FHC/AWK/CS/156/2011 Accord Party & Ors v. Peoples Democratic Party (PDP) & 3 Ors.
xv) The Petitioner shall also rely on any other relevant documents necessary in the prosecution of this Petition or cross-examination of the witnesses.
DATED THIS 24TH DAY OF MAY 2OII.
The 1st Respondent in her Reply to the petition also pleaded the following list of documents to be relied upon. (See pages 48 to 49 of the Record).
LIST OF DOCUMENTS RELIED UPON BY THE 1ST RESPONDENT
1. PDP Membership card of the 1st Respondent.
2. PDP Expression of Interest Form of the 1st Respondent.
3. PDP Nomination Form of the 1st Respondent.
4. PDP Provisional Clearance Certificate enabling the 1st Respondent contest in the PDP primaries.
5. Result of the PDP primaries held in Anambra State on 10th January 2011.
6. Report dated 11th January 2011 of the primaries Election Panel.
7. Letter dated 13th January 2011, by the Aguata LGA Chairman of PDP to the Anambra State PDP Chairman, on the aforesaid primaries.
8. Letters each dated 13th January 2011, by the Anambra State Chairman of PDP forwarding the list of candidates who emerged from the primaries, to the National Chairman of PDP and the 2nd Respondent.
9. Letter dated 10th February 2011 by 2nd Respondent to 3rd Respondent.
10. INEC FORM EC4B(IV) for the 1st Respondent
11. INEC Form CF001 of the 1st Respondent
I1. Processes in Suits Nos.
FHC/AWK/CS/16/2011
FHC/ABJ/CS/142/2011
FHC/AWK/CS/101/2011
FHC/AWK/CS/167/2011
FHC/AWK/CS/5/2011
13. Judgment in Suit N0. FCT/ABJ/V/42/2009: Benji Udeozor & Ors Vs PDP & Ors.
14. Final list of Candidates cleared to contest the National Assembly election in Anambra State in the 2011 general elections.
15. Final list of Candidates for the 2011 general elections. Published in the 2nd Respondent’s website.
16. Letter by Senator J.K. Waku. Dated 12th January 2011 and addressed to 2nd Respondent.
17. Affidavit sworn to by Senator J.K. Waku at the High Court of the Federal capital Territory, Abuja, with the aforesaid letter exhibited.
18. Form EC8E (i) and the Certificate of Return issued by INEC following the election, subject of this Petition.
19. The 2009 Constitution of Peoples Democratic Party.
20. All documents or forms relating to or connected with facts herein pleaded or upon which issues are joined.
DATED AT AWKA THIS 16TH DAY OF JUNE, 2011
The record of appeal is therefore replete with proof that both the appellant and the 1st Respondent are members of PDP, struggling for a chance to represent Aguata Constituency. From the above it leaves no one in doubt that there was a serious crisis in the PDP both at the National and State level over the issue of nomination of candidates for the 2011 National Assembly election in Anambra State with particular reference to the Aguata Federal Constituency. It is unfortunate that the 2nd Respondent INEC was made a scape-goat and dragged into the uncomplimentary scenario but nonetheless the issue remains that of nomination and a pre-election matter which ought to be resolved through redress in the Federal or State High Court by virtue of Section 87 (9) of the Electoral Act 2010 (as amended). Authorities abound on the dichotomy between pre-election and post election matters and this dichotomy cannot be erased by presumptuous logic or academic analysis. It has remained strong, grounded and will not be easily wished away. The case of OHAKIM, VS AGBASO (2010) 19 NWLR (PT 1226) 172 relied on by the appellant’s not, to my mind helpful to his case.
In ODEDO VS INEC (2008) 17 NWLR (PT 1117) 554 at 602 the Supreme Court per Niki Tobi (JSC) had this to say:-
“It is not my understanding of Section 285(i) (a) of the constitution that the subparagraph can accommodate pre-election matters. It is rather my understanding that the subparagraph provides for the determination of whether any person has been validly elected as a member of the National Assembly. In my humble view, the subparagraph provides for election matters which give rise to post election proceedings. As the reliefs sought by the appellant are pre election matters, Section 285(1)(a) could not avail him as that subparagraph does not provide for litigation arising from party primaries—–.”
See also AGBAKOBA VS INEC (2008) 18 NWLR (PT 1119) 489 at 544 where the same Supreme Court per Chukwuma-Eneh (JSC) posited that:-
“Section 285(1)(a) of the 1999 constitution deals with whether any person has been validly elected as a member of the National Assembly. The provision is clear and unambiguous and literally construed is concerned with post election disputes. Any dispute resulting from the conduct of an election is not a pre election dispute but a post election dispute.”
See also AMECHI V INEC (2008) 5 NWLR (PT 1080) 227. This court in ZARANDA VS TILDE (2008) 10 NWLR (PT 1094) 184 at 210 has also held that the Governorship and legislative Houses Election Tribunal sitting in Bauchi had no jurisdiction to entertain a petition on a ground questioning nomination or substitution of a candidate for an election.
In IBRAHIM VS INEC (1999) 8 NWLR (PT 614) 334 at 351 this court held thus:
“It is abundantly clear from these provisions that the grounds recognized for the purpose of presenting an election petition are acts or omissions that was contemporaneous with the conduct of the election. Election tribunal has no power to investigate matters which took place before the conduct of the election.”
In the recent case of UCHA VS ONWE (2011) 4 NWLR (PT 1237) 386. The issue for determination there was, whether having regard to the cause of action being and arising from the result of the 4th Respondent’s nomination exercise, the National Assembly Election Tribunal had jurisdiction to hear and determine the petition filed by the 1st Respondent.
The Supreme Court per Tabai (JSC) after a thorough review of the relevant constitution provisions and Electoral Act as well as some authorities concluded thus at page 427:-
“In view of the foregoing considerations and particularly having regard to the specific pronouncements of this court on the issue of proper venue for pre-election and post election matters in the cases which I have reviewed above and which I am bound to follow, I hold that the election tribunal had no jurisdiction to hear and determine the petition. The matter of the petitioner/1st Respondent’s nomination and/or substitution is a pre-election domestic matter of the PDP for which determination jurisdiction is vested in the Federal High court or the High Court of a state.”In the instant case, there is no doubt that there was controversy over nomination as the rightful candidate of the 3rd Respondent PDP in the recently concluded National Assembly election for the Aguata Federal Constituency which I hold is a pre election matter.
Furthermore, the learned counsel for the appellant had referred to Section 65 of the constitution of the Federal Republic of Nigeria 1999 as it relates to the non qualification of the 1st Respondent to contest the election for the Aguata Federal Constituency. A straight forward response to that is that it has no bearing to the case under consideration and I find reliance on the recent decision of the Supreme Court in UCHA VS ONWE supra at page 247 where it was stated that:-
“Section 66(1) of the 1999 constitution makes specific provisions for a person’s disqualification or non-qualification for election to the Senate or the House of Representatives. These include:
(a) the person’s voluntarily acquisition of the citizenship of a country other than Nigeria;
(b) his having been adjudged a lunatic or an undischarged bankrupt;
(c) his having been sentenced to death or to imprisonment for an offence involving dishonesty;
(d) that he is a member of a secret society;
(e) his having been indicted for embezzlement or fraud;
(f) his presentation of a forged certificate to the Independent National Electoral Commission.
Any of these disabilities spelt out in section 66 (1) of the constitution can properly constitute a ground upon which a person’s election can be questioned in an election petition. A person’s disqualification or non-qualification based on or arising from the domestic nomination exercise of his political party is a pre-election matter over which the Election Tribunal has no jurisdiction.”In the instant case the 1st Respondent cannot be ambush via reliance on Section 65 of the 1999 constitution.
Pursuant to the above considerations and analysis I hold that this appeal lacks merit and should be and is hereby dismissed. The Ruling of the National and State Houses of Assembly Election Tribunal Awka delivered on 7/7/2011 is hereby affirmed.
I make no orders as to costs.
AMINA ADAMU AUGIE, J.C.A: I agree.
MOORE A.A. ADUMEIN, J.C.A: I had the privilege of reading the draft of the judgment delivered by my learned brother – OSEJI, JCA.
I agree with my learned brother that this appeal lacks merit and it ought to be dismissed.
By the appellant’s petition, he and the 1st respondent are members of the same political party – peoples Democratic Party (PDP) – the 3rd respondent. The appellant claimed that he was sponsored by PDP for the election to House of Representatives in respect of Aguata Federal Constituency, Anambra State but that the second respondent (Independent National Electoral Commission INEC) wrongly returned the 1st respondent.
In her reply, the 1st respondent also claimed to have been sponsored by PDP for the same election.
The dispute between the appellant and the 1st respondent is. Therefore, clearly one premised on part1, nomination for the general election in question. This is purely an intra-party dispute and it is also a pre-election issue.
P.I. IKWUETO (SAN), learned senior counsel for the appellant contended strongly at the hearing that the dispute in this petition was justicable in the Tribunal. He relied heavily on the Supreme Court APPEAL NOS: 5C.3/2010, SC.51/2010 and SC.54/2010 (CONSOLIDATED) BETWEEN: CHIEF IKEDI OHAKIM v. CHIEF MARTIN AGBASO & ORS. (Unreported), delivered on the 16th day of July, 2010 where ONNOGHEN, JCA stated, inter alia, thus:
“Secondly, having regards to the facts of this case, there is the need to take a closer look at the jurisdiction of the Election Tribunal with regard to election related matters such as what took place or gave rise to the institution of the present action on appeal. Election is not an event but a process leading to an event. It is necessary, that everything connected with the process leading to the election including the actual election and its aftermath come within the jurisdiction of the Election Tribunal”.
It should be noted that notwithstanding the very strong statement of ONNOGHEN, JSC: the Supreme Court proceeded to reiterate the jurisdiction of Election Tribunals vis-a-vis pre-election matters bordering on nomination of candidates by a political party in the later case of SENATOR UCHA V. DR. ONWE & ORS. (2011) 4 NWLR (Pt. 1237) 386, that matters which arise from the domestic nomination exercise of a political party are pre-election maters outside the jurisdiction of Election Tribunals.
For these reasons and the very comprehensive reasons in the leading judgment of my learned brother – OSEJI, JCA, I too hereby dismiss this appeal.
I abide with all the consequential orders in the leading judgment.
Appearances
P.I.N. Ikwueto (SAN),
Ejike Etobi,
O.N. Okoro,
Mrs E.N. Anyaonu,
Miss I. OnyeonaguFor Appellant
AND
Emeka Ajaegbo,
A.O. Anazor (hold brief of Prof. Ilochi Okafor).
H.N.C. Moghalu,
S.O. Ibrahim Asst. Chief Legal Officer (INEC)
Ernest NwoyeFor Respondent
