HON. ISA BADAMASI DAHIRU & ANOR. V. OTHMAN BALA ADAM & ORS.
(2011)LCN/4851(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of October, 2011
CA/MK/EPT/13/2011 (REASONS)
RATIO
ISSUES FOR DETERMINATION: CIRCUMSTANCES WHERE THE COURT WILL MERGE ISSUES FOR DETERMINATION TOGETHER
I have carefully considered the 3 issues formulated by learned Counsel to the Appellants together with the grounds of appeal in this appeal and I am sufficiently satisfied that these 3 issues capture the essence of the complaints of the Appellants against the judgment of the lower Court in this appeal. It is however, necessary to observe that issue number 2 and issue number 3 are so interwoven and the latter dovetailed into the former. In fact it could clearly be seen in the Appellants’ brief of argument that so much of the arguments on issue 2 were adopted and added to the arguments and submissions on issue 3. For the sake of brevity I would therefore take these 2 issues together… PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
ELECTION PETITIONS : WHETHER A CHALLENGE AS TO THE ELIGIBILITY OF A PERSON TO CONTEST AN ELECTION UPON THE REQUIREMENTS OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA FROM THE PERSPECTIVE OF MEMBERS OF OPPOSING POLITICAL PARTIES IN AN ELECTION ORGANIZED BY INEC IS AN ELECTION MATTER WITHIN THE COMPETENCE AND JURISDICTION OF AN ELECTION TRIBUNAL PURSUANT TO S.285 OF THE CONSTITUTION
In KWARRA V. LAGI (Supra) the Appellant was declared the winner of the election into the Wombo Constituency of the Nassarawa State House of Assembly by INEC. The 1st Respondent and his political party (2nd Respondent) filed a petition before the Election Tribunal established for Nassarawa State challenging the return of the Appellant as the winner of the election. The petition was predicated on the grounds that the Appellant, at the time of the election was not qualified to contest the election as he had made a false declaration in respect of his age and educational qualifications, amongst 2 other grounds. The Tribunal upheld the ground as to the non-qualification of the Appellant to contest the election on ground of his age and educational qualification, and in consequence of that the result of the election was nullified. The Appellant was dissatisfied with this decision. He appealed to this Court. Ground one of the grounds of appeal was:- “The learned Justices of the Election Petition Tribunal- – – – erred in law when they held that they had jurisdiction to entertain ground 1 of the Respondents’ petition which relates to the making of false declaration in INEC Form CF 0001 and nomination forms and this error occasioned a miscarriage of justice.” Out of this ground, issue 1 was formulated for the determination of this appeal. It is as follows:- 1. “whether the Election Petition Tribunal had jurisdiction to entertain the allegation contained in ground one of the election petition which relates to the making of false declaration in INEC Form CF 001 and nominations Forms submitted by Appellant to INEC.” After referring to the decisions of this Court in ABDULLAHI V. ELAYO (1993) 1 NWLR (Pt. 268) 171 and BALEWA V. MUAZU (1999) 7 NWLR (Pt. 609) 124, all concerned with pari materia provisions as in the instant appeal, my learned brother Omoleye, JCA, held that an Election Tribunal has jurisdiction to entertain a petition based on the qualification of a person whose election is questioned. My learned brother, Omoleye, JCA, very commendably in my view, was bold to even hold that:- “I do not agree with the narrow interpretation of the provisions of S.32(4) and (5) of the Electoral Act to mean that the Election Tribunals do not have jurisdiction to entertain pre-election matters. ” See Omoleye, JCA, of page 751 E. After all said and done this Court held in favour of and endorsed the decision of the lower Court in that case that:- “- – – the combined effect of Section 107(1)(i) of the 1999 Constitution and Section 145(a) of the Electoral Act, vests this honourable tribunal with jurisdiction to entertain ground 1 of this petition and we hold so.” We need to remember that the ground 1 being referred here is the issue of age and the educational qualification of the Appellant in KWARRA (Supra). In the case of UDEAGHA V. OMEGARA (Supra), The 1st Appellant, Barrister Ihuoma E. Udeagha contested the election into the Okigwe North Federal Constituency of Imo State with the 1st Respondent, Matthew Omegara. After the election the 3rd Respondent, INEC, declared the 1st Respondent winner. The appellants were not satisfied with declaration of the result of the election. They filed a petition to challenge the return of the 1st Respondent. The 1st ground of the petition is as follows:- “The petitioner’s state that the 1st Respondent Matthew M. Omegara whose election is being questioned was at the time of the election not qualified to contest in the election” When this matter came on appeal before this Court my learned brother Ogunwumiju, JCA, in her characteristic lucidity and erudition considered the issues fully and decided thus:- ”- – – – an opponent who has grounds to believe that any information given to INEC is false, may file a suit at the State or Federal High Court against a candidate seeking a declaration that the information in the affidavit is false. That should be done before the election is held. I agree with the Respondents that the provision is different from the incidents of non-qualification provided for by S.66 and S.109 of the 1999 Constitution which should be tried by the Election Petition Tribunal by virtue of S.285 of the 1999 Constitution.” See Ogunwumiju, JCA, of P. 203 – 204 H – A It is so crystal clear that the facts and circumstances in these 2 analyzed decisions are clear in at least one remarkable and important respect. This essentially is the point of departure. While the issue and incidence of non-qualification alleged in the case of KWARRA pertained to and was said to have been connected with the age and educational qualification of the Appellant, the incidence of allegation of non-qualification in OMEGARA was non-specific and of a general nature. One of the grounds of the petition in this appeal is in paragraph 8 thereof. It is:- “Your Petitioners state that the 1st Respondent was not qualified to in the said election for having made false declarations in the personal particulars and as to academic qualifications submitted to the 3rd Respondent.” From the foregoing exercise, I fully agree with learned Counsel to the Appellants that there are a number of points of departure and distinguishing features between the cases of KWARRA and OMEGARA. And because cases must always be decided based on their peculiar facts and circumstances, I am of the view that the facts and circumstances in this appeal are more proximate to those in the case of KWARRA V. LAGI than UDEAGHA V. OMEGARA. I therefore do not see any conflict in these 2 decisions. There is none at all. It is just a matter of choosing the one that is most applicable to the circumstances of the instant appeal. Let me also observe that the actions envisaged to be considered and if found necessary to be filed at the Federal or States High Courts pursuant to the steps under S. 31 of the Electoral Act 2010, (as amended) are pre-election issues involving, in my humble view, members of the same political party, mainly and specifically after the requisite and mandatory primary elections during which political parties, through their members, choose and elect candidates to be sponsored for elective offices under the Constitution of the Federal Republic of Nigeria. I do not think that it is within the contemplation of the provision of S.31 that members of rival political parties would engage one another in Court actions involving such pre-election issues. It is the duty of the political parties to ensure that none of their sponsored candidates face his opponent from another political party in a general or by-election with any handicap in any manner whatsoever such as defect in educational qualification or such other qualifications provided by the Constitution or any law in this Country. I understand it to be that any member of a registered political party entitled to be nominated and sponsored to contest an election, and having participated in the prescribed primary election of the concerned political party, has a corresponding duty to see that only the right candidate, qualifications wise, in all its ramifications, is sponsored for the election. Because the electoral umpire (INEC) cannot now lawfully disqualify a candidate, it is the duty of concerned members of political parties with the requisite vested interest to approach a particular High Court for a determination of whether a particular person is so qualified as he claimed in the representations he made first to his political party and/or later after his nomination to INEC in the prescribed Form CF 001. A pre-election conflict could hardly arise between members or candidates of different political parties with respect to the result of a particular election or return of a candidate as the winner of an election. Going by what we see today, and if same is anything to go by, and I think it is, most of the pre-election disputes arise out of the results of primary elections between members of the same political party. A challenge as to the eligibility of person to contest an election upon the requirements of the Constitution of the Federal Republic of Nigeria from the perspective of members of opposing political parties in an election organized by INEC will always be an election matter within the competence and jurisdiction of an Election Tribunal pursuant to S.285 of the Constitution. I believe that it is a total misconception to continue to maintain that educational qualification of the candidate of rival party or opponent in an election contest is of ways and in all cases a pre-election matter. I think a determination of this issue need not be willy-nilly or such straight jacketed. It must depend on the facts and circumstance. A defect in the educational qualification required of a candidate by the Constitution is a serious disability where ever and whenever it was seen it ought to be exposed. This must be done to prevent such unfortunate incidences that could lead to illiterates or rogue elements from finding places in the hallowed chambers of our legislatures. Nigerians would not easily forget the “Toronto Saga” in a hurry when, a now pardoned criminal, claimed to have attended and obtained a degree from a University in Toronto, Canada, sat as the Speaker of the Federal House of Representatives. It was found to be totally untrue. It is now history. This must never be allowed to repeat itself . Every citizen of this Country has a right and indeed the duty to enforce the provisions of the Constitution, provided the enforcement of any particular of its provisions affects the exercise of any of his guaranteed rights or obligations. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A.
Before Their Lordships
MUHAMMED LADAN TSAMIYAJustice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMELJustice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAMJustice of The Court of Appeal of Nigeria
Between
1. HON. ISA BADAMASI DAHIRU
2. PEOPLE’S DEMOCRATIC PARTYAppellant(s)
AND
1. OTHMAN BALA ADAM
2. CONGRESS FOR PROGRESIVE CHANGE
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
(REASONS FOR THE JUDGMENT, DELIVERED BY ALI ABUBAKAR BABANDI GUMEL, J.C.A.): On 4th day of October, 2011. I allowed this appeal. I indicated then that I would give the reasons for my judgment, I now do so today. The 3rd Respondent (INEC) organized and conducted elections on the 26th April, 2011 for seats f or the Nassarawo State House of Assembly and other State Houses of Assembly in Nigeria. The 1st Appellant was sponsored by the 2nd Appellant for the election while the 1st Respondent was sponsored by the 2nd Respondent in that behalf. At the end of the elections, the 3rd Respondent returned and declared the 1st Respondent as the duly elected candidate of the Keffi-East Constituency of the Nassarawa State House of Assembly.
The 1st and 2nd Appellants herein, filed petition number EPT/NS/HA/14/2011 to challenge the declaration of the result of the election and return of the 1st Respondent by the 3rd Respondent. Issues were duly joined in the filed and exchanged pleadings of the parties.
In a motion on notice dated and filed on 20/07/2011 and brought pursuant to paragraph 47(2) of the 1st Schedule to the Electoral Act, 2010, as amended, the 1st and 2nd Respondents sought for the following reliefs. They are:-
1. AN ORDER of this Honourable Tribunal striking out or dismissing the petition No. EPT/NS/HA/14/2011 for being incompetent as the petition was filed outside the 21 days period allowed by the Electoral Act, 2010 (as amended).
2. AN ORDER striking out the petition or dismissing the petition No. EPT/NS/HA/14/2011 for lack of jurisdiction by the Honourable Tribunal to hear and determine the petition.
3. AN ORDER setting aside the petitioners’ reply dated 14th day of June, 2011 to the 1st and 2nd Respondents’ reply for being incompetent.
The application was predicated on the following 4 grounds. They are:-
1. That the petition of the petitioners is statute barred as same was filed out of the statutory 21 days allowed for filing the petition under section 134(1) of the Electoral Act, 2010 (as amended).
2. That the petitioners’ petition raises pre-election issue and facts outside the jurisdiction of this Honourable Tribunal.
3. That the Honourable Tribunal lacks the jurisdiction to hear and determine this petition.
4. That the petitioners’ reply to the 1st and 2nd Respondents reply is incompetent for being contrary to paragraph 16(1) (a) & (b) of the first Schedule to the Electoral Act, 2010 (as amended).
This application was supported by a 6 paragraph affidavit. The Petitioners/Respondents and 3rd Respondent (INEC) did not file a counter-affidavit to this motion. However learned Counsel to the Petitioners/Respondents/ Appellants filed a written reply on points of law. After considering these processes and arguments and submissions of learned Counsel to the 1st and 2nd Respondents/Applicants and Petitioners/Respondents in their respective filed and exchanged written addresses, the Lower Court delivered its ruling on 9th August, 2011, wherein it struck out the petition of the Appellants for want of jurisdiction.
The Petitioners/Appellants were dissatisfied with the ruling of the Lower Court and appealed to this Court in a notice of appeal dated and filed on 24th August, 2011. This notice of appeal contains 3 grounds of appeal. They are hereby fully reproduced as follows:
GROUND 1
The Lower Tribunal erred in law when it held that the petitioners’ reply raised new facts tending to amend or add to contents of their petition contrary to Paragraph 16(1) (a) & (b) of the first Schedule of the Electoral Act, 2010 (As Amended) which occasioned miscarriage of justice.
PARTICULARS OF ERROR
1. The Petitioners alluded to the fact that the academic qualification submitted to INEC by the 1st Respondent was either fake or forged.
2. The 1st Respondent in his reply alluded that he went to Ahmadu Bello University Zaria and obtained a Bachelor’s Degree in Public Administration.
3. The Petitioners in their reply controverted that fact by saying the 1st Respondent did not attend ABU, Zaria and if he does did not obtain the degree he is parading.
4. The Petitioners simply joined issues with the 1st Respondent upon his own assertions.
GROUNDS 2
The Lower Tribunal erred in law when it held that the issue of certificate forgery were issues squarely within the jurisdiction of the State or Federal High Court being a pre-election matter and consequently not within the purview of the matters with the jurisdiction of the Election Tribunal.
PARTICULARS OF ERROR
1. The substratum of the Petitioners’ complaint is that the 1st Respondent forged the academic qualification submitted to INEC.
2. The Lower Tribunal held that the Petitioners’ complaint or grievances ought to have been ventilated at the State or Federal High Court.
3. S.31(5) & (6) of the Electoral Act, 2010 (As Amended) did not vest the State or Federal High Court with exclusive jurisdiction to hear and determine issues of false declaration and or certificate forgery.
4. S.138(a) of the Electoral Act, 2010 (As Amended) empowers the Election Tribunal to hear and determine the issue of certificate forgery and they like.
GROUND 3
The Lower Tribunal erred in law when it compared the decision in KWARA V. LAGI (2010) 7 EPR 523 and UDEAGHA V. UMEGARA (2010) 11 NWLR (Pt.1204) 168 and preferred the later when it did decide the same issues; thus came to a wrong conclusion which occasioned a gross miscarriage of justice.
PARTICULARS OF ERROR
1. The decision in KWARA V. LAGI (2010) 7 EPR 523 was based on contention in respect of S.34 of the Electoral Act, 2006 which is impair material with.
2. The case of UDEAGHA (supra) did not decide the venue for the adjudication of issues relating to certificate forgery.
3. The decision in the case of UDEAGHA did not review and or reversed the decision in the case of KWARA V. LAGI (Supra).
To argue this appeal respective learned Counsel filed briefs of argument on behalf of respective parties. The Appellants’ brief is dated and filed on 9/09/2011. The 1st and 2nd Respondents’ brief is dated and filed on 16/09/2011, while that of the 3rd Respondent is dated 26/09/2011 and filed on 27/09/2011 but deemed properly filed and served on 28/09/2011.
From the 3 grounds, though without relating a ground to any particular issue, learned Counsel to the Appellants formulated the following 3 issues for the determination of this appeal. They are:-
1. Whether the Petitioners Reply to the 1st and 2nd Respondents’ reply offend Paragraph 16(a) & (b) and 14 of the First Schedule to the Electoral Act, 2010 (as Amended)?
2. Whether the issue of forgery of Certificate or academic credentials is a pre-election matter which only the regular Courts have jurisdiction to the exclusion of the Election Tribunal?
3. Whether the Court of Appeal in the case of UDEAGHA V. OMEGARA (2010) 11 NWLR (Pt.1204) decided the same issues of forgery of academic qualifications as in the case of KWARA V. LAGI (2010) 7 EPR 523 to have been relied upon as precedent over KWARA’s case in striking out this petition?
On behalf of the 1st and 2nd Respondents, learned counsel formulated the following 2 issues for the determination of this appeal. They are:-
1. Whether the Lower Tribunal was right when it held and declined jurisdiction to hear the Appellants’ Petition on the grounds that the Petition raised Pre-election facts and issues, relying in the case of UDEAGHA VS OMBGARA (2010) 11 NWLR (Pt.1204) 168. (Distilled from grounds 2 and 3).
2. Whether the Lower Tribunal was right when it struck out the petitioners’ reply to the reply of the 1st and 2nd Respondents for being contrary to paragraph 16(1)(a) & (b) of the 1st schedule to the Electoral Act, 2010 (as amended (ground (1).
For the 3rd Respondent, 2 issues for the determination of this appeal were also formulated thus:-
i. Whether the Lower Tribunal rightly declined jurisdiction to hear and determine the Appellants Petition which borders on pre-election dispute and consequently dismissed same. (Distilled from grounds 2 and 3 of the Notice of Appeal).
ii. Whether the Lower Tribunal rightly struck out the Appellants’ reply to the 1st and 2nd Respondents’ reply on the grounds that the said Appellant’s reply contravenes paragraph 16(1)(a)(b) of the 1st Schedule to the Electoral Act, 2010 (as amended). (Distilled from ground one of the Notice of Appeal)
At the hearing of the appeal respective learned Counsel took turns to identify, adopt and rely on their filed briefs of argument. Thereafter learned Counsel to the Appellants urged this Court to allow this appeal and to also set aside the decisions of the Lower Court in its ruling of 9/8/2011. On his part, learned Counsel to the 1st and 2nd Respondents urged this Court to dismiss this appeal for lacking in merit and to affirm the decision of the Lower Court in this appeal. For the 3rd Respondent, learned Counsel urged on this Court to resolve each of the 2 issues he formulated against the Appellants and hold that the Lower Court rightly declined to entertain the petition of the Appellants for want of jurisdiction thereby necessitating an order dismissing this appeal for being unmeritorious.
I have carefully considered the 3 issues formulated by learned Counsel to the Appellants together with the grounds of appeal in this appeal and I am sufficiently satisfied that these 3 issues capture the essence of the complaints of the Appellants against the judgment of the lower Court in this appeal. It is however, necessary to observe that issue number 2 and issue number 3 are so interwoven and the latter dovetailed into the former. In fact it could clearly be seen in the Appellants’ brief of argument that so much of the arguments on issue 2 were adopted and added to the arguments and submissions on issue 3. For the sake of brevity I would therefore take these 2 issues together and I will start the determination of this appeal by going into these 2 issues first and then take the 1st issue as formulated by learned counsel to the Appellants later in this judgment.
In arguing the 2nd issue learned Counsel to the Appellants began with an explanation that the question in this issue boarders on the jurisdiction of the lower Court to determine the substratum of the allegation of forgery of academic credentials and/or qualifications. Upon this background he explained further that the provisions of S.31(5) and (6) of the Electoral Act 2010 (as amended) (hereinafter simply referred to as the Electoral Act) do not vest exclusive jurisdiction on the High Courts. Learned Counsel pointed out that the provision of S.34(1) of the Electoral Act 2006 which was considered and applied in the cases of UDEAGHA V. OMEGARA (2010) 12 NWLR (Pt. 1204) 168 and KWARRA V. LAGI INNOCENT (2009) All FWLR 719 are pari materia to the provisions of S.31(5) of the Electoral Act (Supra).
According to learned Counsel, it was quite in order when the lower Court considered the provisions of S.106 of the 1999 Constitution (as amended) (hereinafter simply referred to as the Constitution) which provides for the issue of qualification for election into a State House of Assembly alongside S.138 of the Electoral Act which deals with the grounds for the presentation of an election petition. He noted however, that after having done so well, the lower Court fell into error when it failed to scrutinize the issue of its undoubted and un-assailed jurisdiction under the all-important provision of S.107(1)(h) of the Constitution involving disqualification on the ground of presentation of a forged academic qualification to INEC. He submitted that it was wrong for the lower Court to subsume S.107(1) (h) under S.106(c) of the Constitution. Also, it is the view of learned Counsel that it is a misconception to assume and hold or believe that since academic qualifications are contained in the declaration made to INEC that provision is exclusive to same and not mindful of other information, that are within the contemplation of S.31(5) and (6) (Supra).
While learned Counsel was prepared to concede, and indeed did concede that the minimum academic qualification required under S.107(1)(h) of the Constitution (supra) is School Certificate, he argued that it is absurd to interpret the meaning of S.107(1)(h) (supra) to relate only to School Certificate as provided by S.106(c) of the Constitution (supra) as to be permissive where a person presents a forged Certificate of a higher academic qualification to enhance his status. Learned Counsel referred to the case of ATTORNEY GEN. OF ONDO STATE V. ATT. GEN. EKITI STATE (2001) (Pt. 79) FWLR 1472 – 1473 and submitted that in the interpretation of the provisions of S.107(1) (h) (supra) a Court of law should not have recourse to any extraneous matters but must ascribe to the words of the provision their ordinary and literal meaning. Added to this, learned Counsel submitted that S.107(1)(h) is not subject to S. 106(c) and neither is the provision of S.138 of the Electoral Act (supra) subject to S.31(5) & (6) of the Electoral Act (Supra). Upon these arguments learned Counsel submitted that it was wrong for the lower Court to hold as it did that the petition of the Appellants was predicated on pre-election matters. He urged this Court to so hold and set aside that decision.
On the cases of KWARA V. INNOCENT LAGI (supra) and UDEAGHA V. OMEGARA (supra), learned Counsel explained that for any decision to become a precedent over another case the issues that arose for determination in both cases must be the same. He relied on GREEN V. GREEN (2001) 45 WRN 90 at 118 – 119 and A.G. ONDO STATE V. A.G EKITI STATE (Supra). Having done that, learned Counsel went further to identify and set out 6 distinguishing features between the cases of KWARRA (Supra) and OMEGARA (Supra). According to learned Counsel, it is only when the cases are alike that the argument has a legal force or argumentum asimili valet in lege. He concluded that the lower Court was wrong in preferring the case of OMEGARA (Supra) over that of KWARRA (Supra) merely for being latter in time as there was no legal basis for that. In arguing his first issue, learned Counsel to the Appellants referred to and extensively reproduced what he considered the most relevant parts of the pleadings of the parties in the petition and the replies thereto and made an attempt to under score the real gravamen in the petition. At paragraph 3.1.3 of page 8 of his brief of argument, learned Counsel pointed out that what the petitioners are alleging is that the 1st Respondent forged his academic qualifications. Thereafter learned Counsel referred to Blacks Law Dictionary 8th Edition of P.677 for the definition of the word “forgery.” Upon this background learned Counsel referred to so many decided cases of this Court and the Supreme Court on the meaning, extent and importance of pleadings in the adjudication of Civil matters and urged this Court to resolve the 1st issue in favour of the Appellants. He further urged that this appeal be of allowed and the order of the lower Court striking out the reply of the petitioners and dismissing this petition be set aside.
In his argument on his issue one learned Counsel to the 1st and 2nd Respondents began with an assertion that the lower Court was right when it held that the Appellants’ petition was predicated on and raised pre-election disputes and it lacked jurisdiction to entertain same. Learned Counsel then went on to identify the key facts and issues in the petition. According to learned Counsel the first set of facts raised on issue relating to alleged invalid or improper nomination of the 1st Respondent by the 2nd Respondent. This was done by Counsel with reference to paragraphs 10 – 12(iii) and 13 of the petition. With respect to the other set of facts, learned Counsel pointed out and identified them as relating to non-qualification as a result of defects in the academic qualifications of the 1st Respondent.
Having settled against this background, learned Counsel proceeded to argue that sponsorship of a candidate for an election is a party issue that is related to party primary election and any complaints relating thereto must be addressed to the appropriate body and must be settled before the election. While referring to the cases of AGBAKOBA V. INEC (2008) 18 NWLR (Pt. 1119) 489, AMAECHI V. INEC (2008) 5 NWLR (Pt. 1080) 227 and KOLAWOLE V. FOLUSHO (2009) 1 NWLR (Pt. 1143) 338, learned Counsel explained that it is settled that pre-election disputes encompass the stage of holding or conducting party primaries to holding of actual election. He added further that post-election disputes on the other hand could only be contemplated during the period of the election and could arise to be challenged as a ground in an election petition under S.138(a) of the Electoral Act (Supra). And while referring to section 285(1) and (2) of the Constitution (Supra) learned Counsel went on to argue that the jurisdiction of the lower Court is only to hear and determine issues relating to disputes that arose from the actual conduct of an election and not disputes an issue that arose before the election. He submitted that all the issues and matters that are in the averments contained on paragraphs 10 – 12(iii) and 13 of the petition are pre-election matters and the lower Court was right to refuse to entertain them for lack of jurisdiction.
In addition to the foregoing, learned Counsel explained that the prayer in paragraph 14 of the petition is anchored on paragraph 8 – 13 thereof which he maintained are grounds or facts tending to show a dispute on pre-election matters involving non-qualification to contest election by the 1st Respondent having allegedly made a false declaration of personal particulars to the 3rd Respondent in INEC form CF 001. On this explanation learned counsel submitted that the facts or grounds tending to support non-qualification of a candidate to contest an election is always a pre-election matter. While referring to Sections 106(c) and 107(1) (h) of the Constitution, learned Counsel explained that an allegation of forgery of a Certificate of academic qualification relate to the minimum qualification. He added that both Sections 106(c) and 107(1)(h) must be read together with S.318 of the Constitution to discover the intention of the legislature. Learned Counsel quoted very extensively from the decisions in the cases of UDEAGHA V. OMEGARA (Supra) and KOLAWOLE V. FOLUSHO (Supra), both decisions on Section 32 of the Electoral Act 2006 a Section pari material with the present S.31 of the Electoral Act 2010 (as amended), and maintained that the facts in OMEGARA (Supra) are on all fours with the facts in the instant appeal and, to that extent learned Counsel submitted that the lower Court was right to have followed and anchored its decision on OMEGARA (Supra) rather than KWARRA V. LAGI (Supra). He urged this Court to so hold and resolve this issue against the Appellants. He also urged further that upon so resolving this issue this Court should proceed to dismiss this appeal.
In arguing his issue 2 learned Counsel started by reproducing the provisions of paragraph 16(1)(a) and (b) of the 1st Schedule to the Electoral Act, 2010 (as amended), (hereinafter simply referred to as 1st Schedule) and explained that by virtue of this provision it is clear that a petitioner is only entitled to file a reply to a Respondent’s reply where new facts or issues are raised in the Respondents’ reply which have not been dealt with in the petition. Against this explanation learned Counsel pointed out that paragraphs 3, 4 and 5 of the petitioners’/Appellants reply to the 1st and 2nd Respondents’ reply to the petition raise new facts and issues that were not in the petition. In an extensive exercise, learned Counsel analyzed and took apart all the facts in paragraphs 3, 4 and 5 against those in paragraphs 15, 12 and 22 of the response of the 1st and 2nd Respondents to the petition and maintained that the reply of the petitioners/Appellants introduced new facts and issues and to that extent the lower Court was right to have struck out the reply dated and filed on 14/06/2011.
While referring to series of cases, learned Counsel invited this Court to find and accept that pleadings in election matters do not follow the trend in regular civil matters. With this in view, he submitted that though it is allowed for a petitioner to join issues further with the Respondents in his reply to their response, such a reply should in no way introduce new issues or facts or indeed grounds or prayers as would amount to a surreptitious amendment of the petition. He further submitted that the Appellants’ reply of 14/06/2011 is incompetent for being contrary to paragraph 16(1)(a) and (b) and to that extent it ought to be struck out as was rightly done by the lower Court. He urged this Court to so hold and resolve this issue against the Appellants and dismiss this appeal.
I have carefully read and considered all the arguments and submissions of learned Counsel to the 3rd Respondent on the 2 issues he formulated in his brief of argument and I wish to observe with all due respect to learned Counsel, I do not see anything new or that would be of any meaningful assistance in the determination of this appeal. I will therefore leave it at that and proceed to determine this appeal on the basis of the arguments and submissions canvassed thus far.
In the determination of the substantial question in this appeal, i.e. whether the petition of the Appellants was only involved with facts or issues constituting a pre-election, it is pertinent to put in perspective the decisions of this Court in YAKUBU ABDULHAMID KWARRA V. LAGI INNOCENT (Supra). This exercise in very compelling in my view because while learned Counsel to the Appellants is of the firm view that the proper decision to be invoked and applied by the lower Court in the circumstance was KWARRA, learned Counsel to the Respondents are of the view that the proper authority that is opposite is OMEGARA (supra).
I have read these 2 decisions of this Court. The first issue determined in KWARRA (Supra) without any doubt is relevant in the instant appeal. So too, the 3rd issue decided upon in OMEGARA (Supra). Let it however be noted that because every election matter must be decided only upon its peculiar facts and circumstances, a further survey and analysis of the facts of these 2 allegedly conflicting decisions of this Court has also become very tempting and even compelling. In KWARRA V. LAGI (Supra) the Appellant was declared the winner of the election into the Wombo Constituency of the Nassarawa State House of Assembly by INEC. The 1st Respondent and his political party (2nd Respondent) filed a petition before the Election Tribunal established for Nassarawa State challenging the return of the Appellant as the winner of the election. The petition was predicated on the grounds that the Appellant, at the time of the election was not qualified to contest the election as he had made a false declaration in respect of his age and educational qualifications, amongst 2 other grounds. The Tribunal upheld the ground as to the non-qualification of the Appellant to contest the election on ground of his age and educational qualification, and in consequence of that the result of the election was nullified. The Appellant was dissatisfied with this decision. He appealed to this Court.
Ground one of the grounds of appeal was:-
“The learned Justices of the Election Petition Tribunal- – – – erred in law when they held that they had jurisdiction to entertain ground 1 of the Respondents’ petition which relates to the making of false declaration in INEC Form CF 0001 and nomination forms and this error occasioned a miscarriage of justice.”
Out of this ground, issue 1 was formulated for the determination of this appeal. It is as follows:-
1. “whether the Election Petition Tribunal had jurisdiction to entertain the allegation contained in ground one of the election petition which relates to the making of false declaration in INEC Form CF 001 and nominations Forms submitted by Appellant to INEC.”
After referring to the decisions of this Court in ABDULLAHI V. ELAYO (1993) 1 NWLR (Pt. 268) 171 and BALEWA V. MUAZU (1999) 7 NWLR (Pt. 609) 124, all concerned with pari materia provisions as in the instant appeal, my learned brother Omoleye, JCA, held that an Election Tribunal has jurisdiction to entertain a petition based on the qualification of a person whose election is questioned. My learned brother, Omoleye, JCA, very commendably in my view, was bold to even hold that:-
“I do not agree with the narrow interpretation of the provisions of S.32(4) and (5) of the Electoral Act to mean that the Election Tribunals do not have jurisdiction to entertain pre-election matters. ”
See Omoleye, JCA, of page 751 E. After all said and done this Court held in favour of and endorsed the decision of the lower Court in that case that:-
“- – – the combined effect of Section 107(1)(i) of the 1999 Constitution and Section 145(a) of the Electoral Act, vests this honourable tribunal with jurisdiction to entertain ground 1 of this petition and we hold so.”
We need to remember that the ground 1 being referred here is the issue of age and the educational qualification of the Appellant in KWARRA (Supra).
In the case of UDEAGHA V. OMEGARA (Supra), The 1st Appellant, Barrister Ihuoma E. Udeagha contested the election into the Okigwe North Federal Constituency of Imo State with the 1st Respondent, Matthew Omegara. After the election the 3rd Respondent, INEC, declared the 1st Respondent winner. The appellants were not satisfied with declaration of the result of the election. They filed a petition to challenge the return of the 1st Respondent. The 1st ground of the petition is as follows:-
“The petitioner’s state that the 1st Respondent Matthew M. Omegara whose election is being questioned was at the time of the election not qualified to contest in the election”
When this matter came on appeal before this Court my learned brother Ogunwumiju, JCA, in her characteristic lucidity and erudition considered the issues fully and decided thus:-
”- – – – an opponent who has grounds to believe that any information given to INEC is false, may file a suit at the State or Federal High Court against a candidate seeking a declaration that the information in the affidavit is false. That should be done before the election is held. I agree with the Respondents that the provision is different from the incidents of non-qualification provided for by S.66 and S.109 of the 1999 Constitution which should be tried by the Election Petition Tribunal by virtue of S.285 of the 1999 Constitution.”
See Ogunwumiju, JCA, of P. 203 – 204 H – A
It is so crystal clear that the facts and circumstances in these 2 analyzed decisions are clear in at least one remarkable and important respect. This essentially is the point of departure. While the issue and incidence of non-qualification alleged in the case of KWARRA pertained to and was said to have been connected with the age and educational qualification of the Appellant, the incidence of allegation of non-qualification in OMEGARA was non-specific and of a general nature.
One of the grounds of the petition in this appeal is in paragraph 8 thereof. It is:-
“Your Petitioners state that the 1st Respondent was not qualified to in the said election for having made false declarations in the personal particulars and as to academic qualifications submitted to the 3rd Respondent.”
From the foregoing exercise, I fully agree with learned Counsel to the Appellants that there are a number of points of departure and distinguishing features between the cases of KWARRA and OMEGARA. And because cases must always be decided based on their peculiar facts and circumstances, I am of the view that the facts and circumstances in this appeal are more proximate to those in the case of KWARRA V. LAGI than UDEAGHA V. OMEGARA. I therefore do not see any conflict in these 2 decisions. There is none at all. It is just a matter of choosing the one that is most applicable to the circumstances of the instant appeal.
Let me also observe that the actions envisaged to be considered and if found necessary to be filed at the Federal or States High Courts pursuant to the steps under S. 31 of the Electoral Act 2010, (as amended) are pre-election issues involving, in my humble view, members of the same political party, mainly and specifically after the requisite and mandatory primary elections during which political parties, through their members, choose and elect candidates to be sponsored for elective offices under the Constitution of the Federal Republic of Nigeria. I do not think that it is within the contemplation of the provision of S.31 that members of rival political parties would engage one another in Court actions involving such pre-election issues. It is the duty of the political parties to ensure that none of their sponsored candidates face his opponent from another political party in a general or by-election with any handicap in any manner whatsoever such as defect in educational qualification or such other qualifications provided by the Constitution or any law in this Country.
I understand it to be that any member of a registered political party entitled to be nominated and sponsored to contest an election, and having participated in the prescribed primary election of the concerned political party, has a corresponding duty to see that only the right candidate, qualifications wise, in all its ramifications, is sponsored for the election. Because the electoral umpire (INEC) cannot now lawfully disqualify a candidate, it is the duty of concerned members of political parties with the requisite vested interest to approach a particular High Court for a determination of whether a particular person is so qualified as he claimed in the representations he made first to his political party and/or later after his nomination to INEC in the prescribed Form CF 001. A pre-election conflict could hardly arise between members or candidates of different political parties with respect to the result of a particular election or return of a candidate as the winner of an election. Going by what we see today, and if same is anything to go by, and I think it is, most of the pre-election disputes arise out of the results of primary elections between members of the same political party. A challenge as to the eligibility of person to contest an election upon the requirements of the Constitution of the Federal Republic of Nigeria from the perspective of members of opposing political parties in an election organized by INEC will always be an election matter within the competence and jurisdiction of an Election Tribunal pursuant to S.285 of the Constitution.
I believe that it is a total misconception to continue to maintain that educational qualification of the candidate of rival party or opponent in an election contest is of ways and in all cases a pre-election matter. I think a determination of this issue need not be willy-nilly or such straight jacketed. It must depend on the facts and circumstance. A defect in the educational qualification required of a candidate by the Constitution is a serious disability where ever and whenever it was seen it ought to be exposed. This must be done to prevent such unfortunate incidences that could lead to illiterates or rogue elements from finding places in the hallowed chambers of our legislatures. Nigerians would not easily forget the “Toronto Saga” in a hurry when, a now pardoned criminal, claimed to have attended and obtained a degree from a University in Toronto, Canada, sat as the Speaker of the Federal House of Representatives. It was found to be totally untrue. It is now history. This must never be allowed to repeat itself . Every citizen of this Country has a right and indeed the duty to enforce the provisions of the Constitution, provided the enforcement of any particular of its provisions affects the exercise of any of his guaranteed rights or obligations.
Based on all the foregoing, I am of the firm view that because the facts and circumstances of the case of KWARRA V. LAGI are more proximate to those in this appeal. I do not have the slightest hesitation to say that the lower Court in deciding as it did based on the decision in UDEAGHA V. OMEGARA fell into a serious error. That decision was perverse. It should not be allowed to stand. Therefore issues 2 and 3 in the Appellants’ brief of argument are resolved in favour of the Appellants.
I have also carefully read all the 5 paragraphs of the reply of the Petitioners/Appellants to the reply of the 1st and 2nd Respondents to the petition contained of page 61 – 62 of the record of appeal. I am of the view that no matter how hard one reads those paragraphs, they would not be seen to be that elastic as to amount to an amendment of the original averments in the petition or as to amount to setting up an entirely new case against that set out and constituted in the petition. I am unable to see how those 3 averments in paragraphs 3 to 5 change the substance, dynamics or direction of the petition as to prejudice or occasion miscarriage of justice on the Respondents to it.
I therefore do not see any, merit in the submissions and arguments of the Respondents herein, in support of the decision of the lower Court striking out the reply of the Petitioners/Appellants. Issue 1 is also hereby resolved against the Respondents.
This appeal is meritorious and it is hereby allowed. The ruling of the lower Court delivered on 9th August, 2011 is hereby set aside. Petition No EPT/NS/HA/14/2011 is remitted to the lower court, for hearing and determination by another panel.
UCHECHUKWU ONYEMENAM, J.C.A.: I have had the privilege of reading in draft the reasons for the judgment delivered by my learned brother, A.A.B. Gumel, JCA on 4th October, 2011.
I agree with the reasonings. I also abide by the consequential orders.
MOHAMMED LADAN TSAMIYA, J.C.A.: I had a preview of the reasons for judgment just read by my learned brother Justice A.A.B. Gumel JCA.
I agree with the reasoning and conclusions and I also abide with the consequential orders.
Appearances
Mr. I.V. Sambo,
Mr. Y.A. Hassan.For Appellant
AND
Chief S.A. Ayiwulu,
Mr. John Obie,
Mr. I.M. Dikko,
Uchechukwu Onyewenam.For Respondent
