HON. TERSEER TSUMBA & ANOR V.GBILEVE ORHENA ADUGU & ORS (2011)

HON. TERSEER TSUMBA & ANOR V.GBILEVE ORHENA ADUGU & ORS

(2011)LCN/4978(CA)

In The Court of Appeal of Nigeria

On Friday, the 9th day of December, 2011

CA/MK/EPT/33/2011

RATIO

MEMBERSHIP OF CANDIDATE: WHETHER THE COURT CAN ENFORCE MEMBERSHIP FOR A CERTAIN CANDIDATE TO THE ELECTION BEFORE CONTESTING AN ELECTION

Political party membership is the requirement of the constitution of the Federal Constitution of Nigeria, 1999, which can be enforced by Court. But the provision requiring membership for a certain candidate to the election before contesting an election is clearly a domestic affair of the political party which cannot be enforced in a court of law especially in a case where the requirement was waived, by the act of the 1st respondent by forwarding the 2nd respondent’s name to the 3rd respondent. PER MOHAMMED LADAN TSAMIYA JCA

INTERPRETATION OF STATUTE: STATUTORY PROVISION ON WHO CAN QUESTION THE ELECTION OF A PARTY OF NON-MEMBERSHIP OF ANY POLITICAL PARTY

…the provisions of Section 138(1) (a-d) of the Electoral Act (supra) must be examined microscopically along with other sections of the Electoral Act and the 1999 Constitution of Nigeria (as amended) and also the decided cases so that the intention of the law makers may be found. By the provisions of Section 137(1) of the Electoral Act (supra) persons entitled to present election petition have been prescribed to be, (a) a candidate in an election (b) A political party which participated in the election. From the petition, 1st appellant averred that he was a candidate at the election in dispute, while the 2nd appellant is a registered political party which sponsored the 1st appellant and both claim the right to be elected on return as winner of the said election. Consequently, by the above provisions of Section 137(1) of the Electoral Act (supra) the appellants have locus-standi to present election petition before the tribunal but can appellants, question the election of the 1st and 2nd respondents of non-membership of any political party? Section 138(1) of the Electoral Act (supra) provides the grounds for questioning an election before a tribunal. And one of the grounds as stipulated are relevant to this as follows:- a. that a person whose election in questioned was at the time of the election, not qualified to contest the election. b. xxx c. xxx d. xxx Similarly, qualifications for membership of House of Assembly has been stated under the provisions of Section 106 (a-d), and one of such qualification is that, a candidate for that election must be a member of a political party and is sponsored by that party. Therefore by the combined effect of Sections 137 (1) and 138 (1) of the Electoral Act (supra) and Section 106(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the above posed questions can be answered in the affirmative. In other words the appellants may question the election of the 1st and 2nd respondents on a member of any political party because requirement of political membership is a Constitutional requirement for contesting an election in Nigeria. PER MOHAMMED LADAN TSAMIYA JCA

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

1. HON. TERSEER TSUMBA
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)

AND

1. GBILEVE ORHENA ADUGU
2. ACTION CONGRESS OF NIGERIA (ACN)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

MOHAMMED LADAN TSAMIYA JCA, (Delivering the Leading Judgment): This is an appeal against the ruling of the National/State House of Assembly Election Tribunal for Benue State (herein referred to as the ‘tribunal’ delivered on 13/10/2011 striking out the petition of the petitioners, (herein referred to as the appellants), in favour of the respondents. The ruling appealed against is at pages 611-625 of the record of appeal (herein referred to as the records).
The summary of the facts leading to this appeal is that election was conducted by the 3rd respondent into the Buruku State Constituency for membership of the Benue State House of Assembly on 26/04/2011. At the end of the election the 3rd respondent declared the 1st respondent as the winner of the election.
Dissatisfied with the declaration and return of the 1st respondents, the appellants filed a petition challenging the results of the said election which was declared on 27/04/2011. The grounds of the petition are as follows:-
a. That the 1st respondent was not duly elected by a majority of lawful votes cast at the said election which results were announced on 27/04/2011,
b. That the said election was invalid by reason of non-compliance with the provisions of the Electoral Act 2010 (as amended).
c. The election was invalid having been marred by violence in the Buruku Constituency by armed thugs recruited by the 1st and 2nd respondents who were actively aided by armed security personal deployed on election day.
d. That the 1st respondent was at the time of the election not qualified to contest the election.
The particulars supporting the above grounds of the petition are contained on pages 4 – 23 of the records.
The appellants ended with the following prayers:
a. That the 1st respondent was not duly or validly elected and or returned as member Benue State House of Assembly by a majority of lawful votes cast pursuant to the Electoral Act, 2010 (as amended): consequently, his return by the 3rd respondent on the 26th April, 2011 is null and void and of no effect whatsoever.
b. That the Benue State House of Assembly election Buruku Constituency held on the 26th April, 2011 was not conducted in accordance with the electoral Act, 2011 and is therefore void.
c. That the Benue State House of Assembly election Buruku Constituency held on the 26th April, 2011 having been marred by intimidation, beatings, killings and harassment of voters, snatching and diversion of election materials was not free and fair and therefore void.
d. An order of the tribunal directing fresh elections to be conducted for Benue State House of Assembly Buruku Constituency.
e. And for such further order(s) as may be adjudged to be proper in the circumstances of this petition.
Upon being served with the petition, 1st and 2nd respondents filed their joint reply on 15/06/2011, (as contained on pages 195 – 197 of the record), while the 3rd respondents reply to the petition was filed on 14/06/2011 and is contained on pages 179 – 189 of the record.
The 1st and 2nd respondents in an attempt to get the petition ended, filed several motions praying the tribunal to strike out it as can be seen on pages 273-520 of the records. The appellants equally filed their counter-affidavits in opposition to those several motions until after the 1st and 2nd respondents finally filed a motion on notice on 27/09/2011 praying the tribunal to strike out the petition on a number of grounds. See pages 460-520 of the record. The appellants re-acted by filing a counter affidavit and a written address on 28/09/2011 as shown on pages 520 – 569 of the records, The said 1st and 2nd respondent filed their reply as shown on pages 570 – 589 of the records.
In accordance with the rules governing this type of appeal both appellants and respondents filed and exchanged their respective briefs of arguments.
In the appellants’ brief of argument four (4) issues were formulated from the eight (8) grounds of appeal, for determination, while 1st and 2nd respondents three (3) issues were formulated for consideration in this appeal, and 3rd respondent formulated two (2) issues for consideration.
The appellants issues are as follows:-
1. In view of the Constitution of Federal Republic of Nigeria, 1999 (as amended), the Electoral Act, 2010 (as amended) and the Action Congress of Nigeria Constitution, whether the 1st Respondent to this Appeal was qualified to have contested the election to the Benue State House of Assembly for Buruku state constituency held under the Action Congress of Nigeria (A.C.N.) on the 26th day of April, 2011 (Ground 3 of the grounds of appeal).
2. Whether or not the paragraphs of the petition which make reference in a passing to unknown and unascertainable military and police personnel as having committed electoral offences but are not joined as parties to the petition can be validly ventilated (grounds 4 and 5 of the grounds of appeal).
3. Having regard to the provisions of paragraphs 12(5) and 53 (3) of the First Schedule to the Electoral Act, 2010 (as amended), whether the trial Tribunal has jurisdiction to entertain the application to strike out the petition in limini? (ground 6 of the grounds of appeal).
4. Whether the learned trial Tribunal was justified in striking out the entire petition when there were sufficient other facts in support of the petition. (ground 2, 7 and 8 of the grounds of appeal).
The 1st and 2nd respondents’ issues read as follows:-
1. Whether the lower Tribunal was not correct to hold that the issue of nomination and sponsorship of a candidate is the domestic affair of a political party and an outsider does not have the right to challenge the Constitution of a political party of which he does not subscribe to (ground 3).
2. Whether the paragraphs of the petition that were struck out by the Lower Tribunal were not liable to be struck out and after striking out those paragraphs, whether there was anything left in the petition to sustain the petition. (Grounds 2, 4, 5, 7 and 8).
3. Whether the Lower Tribunal was right when it relied on the provisions of paragraph 12(5) and 53(3) of the 1st Schedule to the Electoral Act 2010 (as amended) to assume jurisdiction to entertain the application giving rise to this appeal. (Ground 6).
The 3rd respondent’s issues are:-
1. Whether the Appellants not being members of the 2nd Respondent have the Locus Standi to question the candidacy of the 1st Respondent.
2. Whether paragraphs of the petition alleging criminal misconduct against persons not joined as parties to the petition are incompetent and rightly struck out by the Lower Tribunal.
The above issues are similar and same in substance and it is my view that the appellant issues will be considered in determining his appeal.
At the hearing of the appeal, each party in participating in this appeal adopted and relied on his brief of argument. Counsel equally elaborated on their clients’ brief of argument.
On issue 1, learned counsel for the appellants submitted that at the time the 1st respondent purportedly contested the election in question under the platform of the Action Congress of Nigeria (A.C.N) he was still a member of another political party, Peoples Democratic Party (P.D.P.). And having not resigned his membership with P.D.P. he was not qualified from contesting the said election under A.C.N. by virtue of Section 106 (d) of the 1999 Constitution of Nigeria (as amended). That this provisions of the said Section 106 (d) does not recognise dual membership of political parties by a candidate to an election, Even under A.C.N. Constitution, the 1st respondent was not eligible to contest the primary elections as it was after he lost in the P.D.P. primary in January, 2011, that he was said to have purportedly contested under A.C.N. and the time that he contested was less than six months to the A.C.N. primaries as well as the general election of April, 2011, without resigning from the P.D.P.
Learned counsel also submitted that the state executive committee of the A.C.N. Benue State Chapter has no power to grant any waiver to the 1st respondent to contest the election in dispute. It has no power suo-motu to grant any waiver to any candidate like 1st respondent to contest the election on the platform of the party. The said committee purported to do so in the instant case as evidence by Exhibit D, In the circumstance of this case therefore to grant a waiver to the 1st respondent us altra – vires the powers of the state EXECO of A.C.N. Benue State chapter.
In response, the 1st and 2nd respondent submitted that the appellants have no business with the sponsorship of the 1st respondent by the 2nd respondent for the election in question. That it was the 2nd respondent that granted waiver to the 1st respondent to participate in all the activities of the 2nd respondent including but not limited to seeking nomination to contest this election under the platform of the 2nd respondent which the 1st respondent became successful Learned counsel for the 1st and 2nd respondents further argued that the A.C.N. constitution allows a member of a political party that is sponsored by that political party to contest for this election irrespective of when that person joins that party. That even if the 1st respondent was not granted a waiver by the 2nd respondent, the acts and conduct of the 2nd respondent, by sending/forwarding his name to the 3rd respondent as evidence by Exhibit F1 clearly shows that the 2nd respondent, has waived any condition precedent to contesting this election on the platform of the 2nd respondent. That the power to nominate and screen and verify candidates sought to be sponsored is the duty of any political party, A.C.N. inclusive, and as such selection, nomination of candidates by the 2nd respondent is not a global or community right available to the appellants. Therefore the tribunal was right when it held in its ruling that the appellant had no Locus- Standi to challenge or question any act of the 1st and 2nd respondents whether or not he was qualified to contest the election having not been a financial member of the 2nd respondent.
The learned counsel for the 3rd respondent contended that the provisions of Section 106 (d) (supra) did not specify a duration of time that a person has to be a member of a political party before qualifying to contest the election, therefore to say that a party cannot nominate/sponsor a candidate it wishes by a member of another political party amounts to interference of internal affairs of the former party by a latter party and the latter party lacks capacity to do so having not been in the same party. He urged this court to dismiss the appeal.
This issue No: 1 of the appellant’s issue is related to ground No: 4 of the petition. In the said ground, the appellants challenged the return of the 1st respondent on ground that at the time of the election in question the, 1st respondent was not qualified to contest the said election. The particulars in support of this ground are as follows:-
Particulars:
68. That the 1st respondent was not a member of the 2nd respondent herein at the time the 2nd respondent purported to have sponsored the 1st respondent for the said election by virtue of Article 19.3 of the 2nd respondent’s Constitution registered with the 3rd respondent in that the 1st respondent was not a financial member of the 2nd respondent for a period of 6 months proceeding the date of the election. The constitution of the 2nd respondent is hereby pleaded.
69. That the 1st respondent was a member of the 2nd petitioner at all material times till the time the primary election of the 2nd petitioner was conducted on the 4th January 2011.
70. By virtue of Section 65(2) (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The 1st respondent was no qualified to have contested the election, in that he was not a member of 2nd respondent and was not sponsored by the 2nd respondent for the election.
71. That the purported sponsorship of the 1st respondent by the 2nd respondent was in gross violation of Sections 65(2) (b) and 222 of the 1999 constitution (as amended) read together with article 19.3 of the 2nd respondents Constitution.
On service of the petition on both respondents they filed their respective replies. The 3rd respondent was the first to file its relies on 14/06/201 (see pages 179 -189) of the record and then 1st and 2nd respondents reply was filed on 15/06/2011 as shown on pages 190 – 197 of the record. In their joint reply, 1st and 2nd respondents responded to each particular in support of ground No: 4 of the petition. The relevant paragraphs of their reply read as follows:
Paragraph:-
18. In reply to particulars 68 to 71 of the petition, 1st and 2nd respondents state that 1st respondent was qualified to contest the election having fulfilled all the requirements prescribed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) the Electoral Act 2010 (as amended) and the Constitution of the 2nd Respondent 2010 (as amended).
19. 1st and 2nd Respondents state that the 1st respondent was a member of the 2nd respondent at the time of the election and 2nd respondent duly sponsored 1st respondent to contest the election and 1st respondent did contest the election and won.
20. 1st and 2nd respondents shall contend at the hearing of this petition that by paragraph 19.3 of the 2nd respondent’s Constitution registered with the 3rd respondent, 1st respondent was duly qualified to contest the election as 2nd respondent had/has powers to grant waiver to the 1st respondent and did grant same to the 1st respondent 1st and 2nd respondent shall rely on the Constitution of the 2nd respondent, Action Congress of Nigeria (as amended) and the instrument conveying the said waiver to the 1st respondent y the 2nd respondent at the hearing of this petition. The said documents are hereby pleaded.
21. In further answer to paragraph 68-71 thereof, 1st and 2nd respondents shall state that 1st respondent had ceased to be a member of the 2nd petitioner before joining 2nd respondent as a member. 1st respondent denied ever participating n the 2nd petitioner’s primaries. A press conference by the 1st respondent withdrawing his membership from the 2nd petitioner is hereby pleaded.
22. 1st and 2nd respondents shall lead evidence at the hearing of the petition to establish that 1st respondent had withdrawn his membership of the 2nd petitioner and he a duly registered member of the 2nd respondent in the 1st respondent council ward of Mbayaka at page 117 and the 1st respondent membership card of the 2nd respondent. The said documents are hereby pleaded 1st responded made a press statement giving effect to his withdrawal from PDP same is hereby pleaded.
23. In further answer to particulars 68 to 71 of the petition, 1st and 2nd respondents state that 1st respondent was a member of 2nd respondent and 1st respondent was sponsored by the 2nd respondent to contest the election having emerged as winner in the primaries conducted by the 2nd respondent in Buruku state Constituency. 1st and 2nd respondents shall rely on the list of candidates submitted to the 3rd respondent by the 2nd respondent as 2nd respondent’s candidates for the election with the name of the said list is hereby pleaded.
From the above one could say that the appellants challenged the return of the 1st respondent on ground that, the 1st respondent, at the time of the election in dispute, was not qualified to contest the election, inter-alia, having not been a member of a political party and properly sponsored by that party, It was these questions that the respondent denied in their respective replies. Having denied theses question through their reply, in my view, have joined issue on membership and sponsorship of the 1st respondent. Therefore, those issues become contentious to the extent that they ought to be resolved through evidence adduce in the trial. Failure on part of the tribunal to proceed on trial is wrong.
But I observe the tribunal struck this ground of appeal for lack of jurisdiction being an issue on a pre-election matter. If tribunal painstakingly examined this ground it would have discovered that it has jurisdiction over it being an issue under Section 106 (2) (d) of the Constitution (supra) read in conjunction with Section 138 of the said Constitution.
The next question on this issue is whether the 1st appellant being non-member of the 2nd respondent could validly raise the said challenge against the 1st and 2nd respondent.
From the totality of the facts pleaded in support of the 4th ground of the petition the complaint of the appellants is that, at the time the election in dispute was conducted by the 3rd respondent, the 1st respondent was not a member of the 2nd respondent therefore he cannot be validly sponsored by the 2nd respondent, and as such he was not qualified to contest such election. Can section 138(1) of the Electoral Act 2010 (as amended) accommodate the questioning of an election on a candidate that does not belong to a political party?
Or put differently, is non-membership of a political party a ground for questioning of an election under section 138(1) of the Electoral Act? If the answer is in the affirmative, then can the appellants who are not members of the respondent but a candidate in the election in dispute and a political party which participated in the election, question the validity of candidature of the 1st appellant?
Political party membership is the requirement of the constitution of the Federal Constitution of Nigeria, 1999, which can be enforced by Court. But the provision requiring membership for a certain candidate to the election before contesting an election is clearly a domestic affair of the political party which cannot be enforced in a court of law especially in a case where the requirement was waived, by the act of the 1st respondent by forwarding the 2nd respondent’s name to the 3rd respondent.
I think in the determination of the above question, the provisions of Section 138(1) (a-d) of the Electoral Act (supra) must be examined microscopically along with other sections of the Electoral Act and the 1999 Constitution of Nigeria (as amended) and also the decided cases so that the intention of the law makers may be found.
By the provisions of Section 137(1) of the Electoral Act (supra) persons entitled to present election petition have been prescribed to be,
(a) a candidate in an election
(b) A political party which participated in the election.
From the petition, 1st appellant averred that he was a candidate at the election in dispute, while the 2nd appellant is a registered political party which sponsored the 1st appellant and both claim the right to be elected on return as winner of the said election. Consequently, by the above provisions of Section 137(1) of the Electoral Act (supra) the appellants have locus-standi to present election petition before the tribunal but can appellants, question the election of the 1st and 2nd respondents of non-membership of any political party?
Section 138(1) of the Electoral Act (supra) provides the
grounds for questioning an election before a tribunal. And one of
the grounds as stipulated are relevant to this as follows:-
a. that a person whose election in questioned was at the time
of the election, not qualified to contest the election.
b. xxx
c. xxx
d. xxx
Similarly, qualifications for membership of House of Assembly has been stated under the provisions of Section 106 (a-d), and one of such qualification is that, a candidate for that election must be a member of a political party and is sponsored by that party.
Therefore by the combined effect of Sections 137 (1) and 138 (1) of the Electoral Act (supra) and Section 106(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the above posed questions can be answered in the affirmative. In other words the appellants may question the election of the 1st and 2nd respondents on a member of any political party because requirement of political membership is a Constitutional requirement for contesting an election in Nigeria.
Having said the above, issues touching on the competence of the 4th ground of the appellants’ petition, jurisdiction of the tribunal over it and of locus-standi, of the appellants in this case are the back-bone of adjudication in this case and ought to be and are hereby resolved in favour of the appellants. Accordingly, the tribunal was wrong in declining jurisdiction to entertain the 4th ground of the petition, and also it is wrong in striking out this 4th ground of petition for lack of jurisdiction, and I so hold. The issue is hereby restored.
Issue 2: The complaint of the appellants under this issue is that, the tribunal was wrong to have ventilated paragraphs of the appellants’ petition which made reference to unknown and unascertainable security agencies as having committed criminal offences but are not joined in the petition as parties.
In his brief of argument, learned counsel for the appellants contended that mere reference to security operatives who were unnamed, unascertained, and un-identified in a petition but who are not joined as parties therein, does not make the paragraphs of the petition incompetent and liable to be struck out. The tribunal therefore was wrong to have struck out both the aforementioned paragraphs and the entire petition, because even if those paragraphs named are struck out there are other facts/grounds that can sustain the petition. He urged this count to hold that the tribunal was wrong.
In respond to this, learned counsel for 1st and 2nd respondents contended that the aforementioned paragraphs that were struck out contained criminal allegations against some named individuals that were not joined as parties to defend themselves, therefore, proceeding to entertain these criminal allegations against those who are not parties would have amounted to denying of fair hearing on their part and their institutions. He further contended that even if those paragraphs were entertained, they cannot be effectively ventilated in the absence of those mentioned therein without infringing on the principle of fair hearing guaranteed by the constitution. He urged this court to hold that the tribunal was right when it struck out those named paragraphs for non-joinder of the affected, but unidentified parties.
The learned counsel for the 3rd respondent submitted that the entire named paragraphs of the petition as shown from pages 1-26 of the record mentioned the names of security personnel and several other that were not made parties to the petition, and on that ground the tribunal struck those paragraph and the tribune was right for doing so.
In its ruling, the tribunal at page 35 of the record and after hearing the submissions of the counsel for the parties struck out the named paragraphs.
I have painstakingly considered the arguments of the learned counsel on both sides on this issue and have noted that each relied on legal authorities provided in their respective briefs. From the record, I have observed that police officers, the Army and other security agencies and some other persons were accused of committing Electoral offences that are criminal in nature and yet they were not joined as parties in the petition. However, it accord with the principle of natural justice or fair hearing to join them so as to defend themselves against such criminal allegations.
It is common knowledge that security agencies, such as Nigeria Army, Nigeria police, Civil Defence Corps are statutory bodies charged with the maintenance of peace, order and defence of our territorial integrity. These bodies are normally deployed by the 3rd respondents, (INEC), for purpose of election and if they go out of their constitutional duties to engage in various activities as claimed by the appellants, then the rule of fair hearing demands that they should be joined so as to defend themselves because their alleged conduct if proved will affect the petition positively. By the decision of Ige v. Farinde (1994) 7 NWLR (pt. 594) 42, there is no how this petition can be effectively and completely settled without joining these organs whom serious allegations have been made, in view of the effect the allegations would have on their integrity as security outfits. Therefore, as non of these security agencies and thugs have been mentioned by their names, the named paragraphs cannot stand. More so, the appellants at page 14 of their brief, conceded that the named paragraphs of the petition contained the names of those security agencies that are not joined as parties in the petition because their individual addresses are not known for service, the tribunal, was perfectly right when it struck out paragraphs 5-7, 9, 10, 12-14, 17, 20-22, 25, 28, 29, and 30 of the petition for non-joiner and I so hold.
Now, having struck out these above named paragraphs which touched grounds 1, 2 and 3, can these grounds stand in the absence those struck out paragraphs? In other words, were the remaining facts supporting these grounds 1, 2, and 3 sustainable?
As far as particulars immediately following ground one of the petition are concerned, I am of the view and in agreement with the appellants that they are sustainable particularly, where the appellants averred that the House of Assembly Election for Buruku State Constituency was characterised by snatching of electoral materials violence, harassment and intimidation of prospective voters, massive thumb-printing and falsification of figures, and, paragraphs 1-4 11, 18, 24, 27, 40, 50, 51, 52, 53, 54, 55, 56, 58, 59, 51, 62, 63, 64, contained the allegations that were clearly against the 2nd and 3rd respondents and not against parties not joined.
These above named paragraphs are therefore sustainable and can sustain grounds 1, 2 and 3 of the petition. The tribunal therefore was wrong to have struck ground 1, 2 and 3 of the petition for non-sustainable allegation in the. This issue is again partly resolved in favour of the appellants.
Having determined these two issues in favour of the appellants, I think there is no need to examine issues 3 and 4 of the appellants’ issue as the answers to the first two issues would take care of the remaining last two issues.
Accordingly the appeal is allowed. The decision of the tribunal dated on 13/10/2011 is set aside. The Petition No. NSHA/EPT/BN/HA/32/2011 is remitted back for re-trial before another tribunal different from the one that heard it before.
No costs ordered.