HUSSAINI YUSUF GIREI v. ALHAJI MOHAMMED MUTAWAL & ORS
(2019)LCN/13709(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of July, 2019
CA/A/EPT/586/2019
RATIO
ELECTION PETITION: QUALIFICATION TO RUN FOR THE HOUSE OF ASSEMBLY, SECTIONS 106 (C) AND 318 (1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Qualification of a candidate for the House of Assembly of a state has been adequately catered for in Sections 106 (c) and 318 (1) of the 1999 Constitution of the Federal Republic of Nigeria. A careful look at the constitutional provision will resolve this all important issue. Section 106 of the constitution of Nigeria 1999 (as amended) provides:
Qualifications for election
106. Subject to the provisions of Section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if –
(a) He is a citizen of Nigeria;
(b) He has attained the age of thirty years;
(c) He has been educated up to at least the School Certificate level or its equivalent; and
(d) He is a member of a political party and is sponsored by that party. PER STEPHEN JONAH ADAH, J.C.A.
INTERPRETATION OF STATUTES WHERE THE WORDS ARE CLEAR AND UNAMBIGUOUS
This propagates the principle that where words of any statute are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity, or be in conflict with, the other provisions of the Constitution or Statute. See the cases of Shettima & Anor v. Goni & Ors (2011) 18 RWLR (Pt. 1279) 413. In a situation of clear and unambiguous words no Court has the vires to import or to overlay the words with what they do not say or portray because a Court is bound to give to those words their Ordinary and plain meanings. Ogunbiyi JSC in the case of Skye Bank Plc V. Iwu (2017) 16 NWLR (Pt. 1590) 24, held that where words are clear, unambiguous and to the point, any addition or subtraction will be sequel to introducing an illegal back door amendment. From the lucid and clear provision of the Constitution, I do not see the need in the instant appeal for unnecessary controversy about what is meant by “school Certificate or its equivalent. Section 318 (1) of the Constitution broke it down and even said in the Clause (d) subjectively that it includes “any other qualification acceptable by the independent National Electoral Commission (INEC). The constitution by this, has clearly entrusted into the hands of INEC the power to determine any acceptable qualification commensurate to the School Certificate Level. The 1st Respondent had at the lower Court shown a school Certificate and a testimonial of his having attended a secondary school. PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
Between
HUSSAINI YUSUF GIREI Appellant(s)
AND
1. ALHAJI MOHAMMED MUTAWAL
2. ALL PROGRESSIVES CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court Abuja Division in Suit No FHC/ABJ/CS/1411/2018 delivered on the 16th day of May, 2019 by Okon Abang, J.
The appellant as the Plaintiff took out a concurrent originating summons against the respondents who were the Defendants before the lower Court on 22nd day of November 2018. The originating summons was for the determination of six questions and eleven consequential reliefs. The questions and the reliefs are worded as follows:
1. Whether the school Leaving Certificate dated 30/10/1986 and the purported Testimonial allegedly issued to the 1st Defendant by Government Secondary Technical School, Numan dated 30/10/1986, both of which contained results of an alleged Mock Examination and were submitted by the 1st Defendant to the 2nd and 3rd Defendants, particularly as part of documents submitted along with INEC Form CF001 by the 1st Defendant qualify as Secondary School Certificate within the meaning of Section 106 (c) and Section 318 of the Constitution of the FEDERAL Republic of Nigeria, 1999 (as amended).
1
2. Whether having regard to Section 106 (c) and 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Testimonial or certificate in respect of a purported Mock Examination being paraded by the 1st Defendant, not being either, the General Certificate of Secondary Education (GCE), West African School Certificate (WASC) National Education council of Nigeria (NECO) Certificate of Secondary Education, Grade II Teacher’s Certificate, The City and Guilds Certificate, or their equivalence, would legally suffice or meet the educational requirement of a candidate seeking election into a State House of Assembly as provided in those constitution provisions.
3. Whether having regard to the provisions of Section 106 (c) and 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 138 (1) (a) of the Electoral Act 2010 (as amended) and relevant provisions of the 1st Defendant’s Constitution 2014 (as amended), the 1st Defendant had requisite educational qualifications to aspire to the office of member of the Adamawa State House of Assembly let
2
alone participate in the primary election of 9th October 2018 held by the 2nd Defendant for the selection of candidate of the 2nd Defendant for the 2019 general election for the said office.
4. Whether the nomination of the 1st Defendant by the 2nd Defendant as its candidate for the forthcoming 2019 general election to the office of member of the Adamawa State House of Assembly representing Girei Constituency of Adamwa State is not unconstitutional, null and void and of no effect whatsoever in view of his failure to meet the requisite educational requirements for the said office.
5. Whether the 1st Defendant having not been qualified ab initio to contest the primary election, all votes recorded in his favour at the said primary election are not null and void and of no effect whatsoever.
6. Whether in view of Section 87 (4) (c) (ii) of the Electoral Act 2010 (as amended), the Plaintiff having scored the highest number of votes in the event of the nullification of the votes and candidacy of the 1st Defendant, is entitled to be declared winner of the primary election and candidate of the 2nd Defendant in the forthcoming 2019 general election
3
for the seat of member of the Adamawa State House of Assembly representing Girei Constituency of Adamawa State.
Upon the determination of the foregoing questions, the Plaintiff claims against the Defendants jointly and/or severally as follows:-
1. A DECLARATION that the school Leaving Certificate dated 30/10/1986 and or the purported Testimonial allegedly issued to the 1st Defendant by Government Secondary Technical School, Numan dated 30/10/1986, both of which contained results of an alleged Mock Examination and were submitted by the 1st Defendant to the 2nd and 3rd Defendant, particularly as part of documents submitted along with INEC Form CFOO1 by the 1st Defendant, do not qualify as Secondary School Certificate within the meaning of Section 106 (c) and Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
2. A DECLARATION that having regard to Section 106 (c) and 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Testimonial or Certificate in respect of a purported Mock Examination being paraded by the 1st Defendant, not being either the General Certificate
4
of Secondary Education (GCE), West African School Certificate ( WASC), National Education Council of Nigeria (NECO) Certificate of Secondary Education, Grade II Teacher’s Certificate, the City and Guilds Certificate, or their equivalence, would not legally suffice or meet the educational requirement of a candidate seeking election into a state House of Assembly as provided in those constitutional provisions.
3. A DECLARATION that having regard to the provisions of Section 106 (c) and 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 138 (1) (a) of the Electoral Act 2010 (as amended), and relevant provisions of the 1st Defendant’s Constitution 2014 (as amended), the 1st Defendant did not have requisite educational qualifications to aspire to the office of member of the Adamawa State House of Assembly representing Girei Constituency of Adamawa State or of any constituency for that matter, let alone participate in the primary selection of candidate of the 2nd Defendant for the 2019 general election for the said office.
4. A DECLARATION that the purported
5
nomination of the 1st Defendant by the 2nd Defendant as its candidate for the forthcoming 2019 general election to the office of member of the Adamawa State House of Assembly representing Girei Constituency of Adamawa State House of Assembly representing Girei Constituency of Adamawa State is clearly unconstitutional, null and void and of no effect whatsoever in view of his failure to meet the requisite educational requirements for the said office.
5. A DECLARATION that the 1st Defendant having not been qualified arb intio to contest the primary election are null and void and of no effect whatsoever.
6. A DECLARATION that having scored the highest number of votes in the event of the nullification of the votes and candidacy of the 1st Defendant, the plaintiff is entitled to be declared and is hereby winner of the primary election and candidate of the 2nd Defendant in the forthcoming 2019 general election for the seat of member of the Adamawa State House of Assembly representing Girei Constituency of Adamawa State.
7. AN ORDER setting aside and or nullifying the purported nomination of the 1st Defendant as
6
candidate of the 2nd Defendant for Girei Constituency of Adamawa State in the forthcoming 2019 general election for the seat of member of the Adamawa State House of Assembly representing Girei Constituency of Adamawa State as well as any INEC FORM CF002 (ii) (SUBMISSION OF NAMES OF CANDIDATES BY POLITICAL PARTY) purportedly issues in that regard.
7. AN ORDER directing the 2nd Defendant to immediately forward the name of the Plaintiff being the contestant with the highest number of votes cast at the primary election held on 9th October, 2018 to the 3rd Defendant, as its candidate for Girei Constituency of Adamawa State in the forthcoming 2019 general election for the seat of member of the Adamawa State House of Assembly representing Girei Constituency of Adamawa State.
9. AN ORDER directing the 3rd Defendant to recognize and give full recognition to the Plaintiff as candidate of the 2nd Defendant for Girei Constituency of Adamawa State in the forthcoming 2019 general election for the seat of member of the Adamawa State House of Assembly representing Girei Constituency of Adamawa State.
10. AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd and
7
3rd Defendants, their agents, privies, servants and assigns or any person however from recognizing and or continuing to recongnise the 1st Defendant as the 2nd Defendant’s candidate for Girei Constituency of Adamawa State in the forthcoming 2019 general election for the seat of member of the Adamawa State House of Assembly representing Girei Constituency of Adamawa State or granting to him any right in relation thereto.
11. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant from putting himself out or parading himself as candidate of the 2nd Defendant for Griei Constituency of Adamawa State in the forthcoming 2019 general election for the member of the Adamawa State House of Assembly representing Girei Constituency of Adamawa State.
The lower Court heard the parties case and overruled the preliminary objection raised and dismissed the claim.
Aggrieved by the decision the appellant now approached this Court on appeal vide the notice of appeal dated 27/5/19 and filed on 28/5/2019.
?
The Record of Appeal was transmitted on 28/6/19. The appellant brief was filed on 5/7/19. The 1st Respondent’s brief was filed on 11/7/19 while the 2nd
8
Respondent’s brief was filed on 16/7/19.
The 2nd Respondent filed a notice of preliminary objection which was argued in his brief of argument. He moved the preliminary objection in Court and urged the Court to strike out the appeal for want of jurisdiction. In response the appellant filed a reply brief on 18/7/19 wherein he addressed the preliminary objection at pages 2 to 6. He adopted his argument and urged the Court to overrule the preliminary objection.
It is our established practice to deal with the issue of preliminary objection first. The instant appeal as with all appeals under our rules is a rehearing of the case of the parties originated before the trial Court. Order 7 Rule 2 (i) of the 2016 Rules of the Court, provides:
2.-(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the registry of the Court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names
%0
