IYIOLA & ANOR v. INEC (2022)

IYIOLA & ANOR v. INEC

(2022)LCN/16923(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, December 14, 2022

CA/IB/444/2022

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. IBRAHEEM OLAYODE IYIOLA 2. ACCORD APPELANT(S)

And

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE INDEPENDENT NATIONAL ELECTION COMMISSION CAN DECIDE WHEN ELECTIONS ARE TO HOLD

 It has been recognized by the Supreme Court that the Independent National Electoral Commission, the respondent in this appeal, has the prerogative to issue time tables for general elections in Nigeria. See Agballah v. Chime (2009) 1 NWLR (Pt. 1122) 373, PPA v. INEC (2010) 12 NWLR (Pt. 1207) 70, CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493, Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) – 574, Shinkafi v. Yari (2016) 7 NWLR (Pt. 1511) 340 and Falake v. INEC (2016) 18 NWLR (Pt. 1543) 61.
Whilst considering the provisions of Section 30 of the Electoral Act, 2010 (as amended), in pari materia with those of Section 28 of the Electoral Act, 2022 the Supreme Court, in the case of National Democratic Party v. Independent National Electoral Commission (2013) 6 NWLR (Pt. 1350) 392 at 421, per Ariwoola, JSC (as he then was, now CJN) held as follows:
“It is not in doubt that the Independent National Electoral Commission (INEC) that is, the respondent herein, has the sole responsibility to decide when elections are to hold. See Peoples Democratic Party vs. Timipre Sylva & Ors (2012) 13 NWLR (Pt. 1316) 85 at 122. The respondent also reserves the prerogative to decide what time table to activities to publish for a General Election.”
PER ADUMEIN, J.C.A.

WHETHER OR NOT AN INDOLENT PARTY CAN BE AIDED BY THE COURT

The law is trite that an indolent party, like the 2nd appellant in this appeal, will not be aided by a Court of law. See Jonason Triangle Ltd. v. CM & P Ltd. (2002) 15 NWLR (Pt. 789) 176, Osun State Independent Electoral Commission & Anor v. Action Congress & Ors (2010) 19 NWLR (Pt. 1226) 273 and Vincent Ugo & 3 Ors. v. Diokpa Ummuna & 4 Ors. (2018) 2 NWLR (Pt. 1602) 102. PER ADUMEIN, J.C.A.

WHETHER OR NOT POLITICAL PARTIES MUST OBEY ITS OWN CONSTITUTION AND GUIDELINES

The law is that a political party must obey its own Constitution and Guidelines. See the cases of Hope Uzodinma v. Senator O. Izunaso (No. 2) (2011) 11 NWLR (Pt. 1275) 30 and RT. Hon. Prince Terhement Tarzoor v. Ortom Samuel Ioraer (2016) 3 NWLR (Pt. 1500) 46. It is therefore of greater importance that a political party must obey the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral act, 2022 and Guidelines and Time Tables issued by the Independent National Electoral Commission for the conduct of elections in Nigeria.
PER ADUMEIN, J.C.A.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellants were the plaintiffs in Suit No. FHC/IB/CS/134/2022, which was instituted in the Federal High Court, holden at Ibadan, Oyo State. They sought the trial Court to determine the following question:
“1. WHETHER BY THE express and combined mandatory provisions of Sections 29(1, 2, & 3); 84 (1, 2 5(c), Sections 7 & 14 of the Electoral Act, 2022 and Sections 106 & 107 of the Constitution of the Federal Republic of Nigeria, the respondent ought to be compelled to accept and publish the 1st plaintiff’s nomination forms containing his names and particulars as the person nominated/elected as the 2nd plaintiff’s candidate to contest election as a member of the Oyo State House of Assembly in the forthcoming election representing Ibadan South East Local government Constituency 1 (one) scheduled to hold on the 25th of February, 2023, the plaintiff having won the 2nd plaintiff’s primary election for the Ibadan South East Local Government Constituency 1 (ONE) and also being qualified to contest for the said office in the general election.”

The appellants proceeded to claim against the respondent (which was the defendant in the trial Court) as follows:
“1. WHETHER by the express and combined mandatory provisions of Sections 29(1, 2, & 3); 84 (1, 2 5(c), Sections 7 & 14 of the Electoral Act, 2022 and Sections 106 & 107 of the Constitution of the Federal Republic of Nigeria, the respondent ought to be compelled to accept and publish the 1st plaintiff’s nomination forms containing his names and particulars as the person nominated/elected as the 2nd plaintiff’s candidate to contest election as a member of the Oyo State House of Assembly in the forthcoming election representing Ibadan South East Local Government Constituency 1 (one) scheduled to hold on the 25th of February, 2023, the 1st plaintiff having won the 2nd plaintiff’s primary election for the Ibadan Southeast Local Government Constituency 1 (ONE) and also being qualified to contest for the said office in the general election.
2. AN ORDER OF THIS HONOURABLE COURT compelling the respondent to accept and publish the 1st plaintiff’s nomination form containing his name and particulars as the 2nd plaintiff’s candidate for election as member, Oyo State House of Assembly representing Ibadan South East Local Government Constituency 1 (ONE) of Oyo State in the forthcoming general election scheduled to hold on the 25th of February, 2023.
3. ANY OTHER OR FURTHER ORDERS of this Honourable Court as the circumstances of this case may require in the interest of justice.

They based their claims on the following grounds:
“(i) The respondent is the Electoral umpire in charge of conducting a free, fair and credible election in the General Election scheduled to hold in 2023.
(ii) In the build up to the 2023 General election, the respondent is to publish the names of successful candidates in the various party’s primaries to contest for various elective position/offices in their website or portal.
(iii) part of the responsibility of the 2nd plaintiff is to electronically uploaded the name of the applicant and the names of other successful candidates in the 2nd plaintiff’s primaries contesting for various elective positions to the respondent who will then publish same on her website.
(iv) That the applicant was the declared winner of the 2nd plaintiff’s primary election held on the 30/7/2022 to contest as a member of the Oyo State House of Assembly representing Ibadan South East Local Government Constituency 1 (ONE) in the general election scheduled to hold on the 25th of February, 2023.
(v) The 2nd plaintiff consistently tried to electronically upload the name of the 1st plaintiff as the candidate to contest as a member of the Oyo State House of Assembly representing Ibadan South East Local Government Constituency 1 (ONE) in the 2023 General Election but encountered difficulty due to the fact that the respondent’s portal or website had technical problem, thus making it impossible to upload the 1st plaintiff’s name on the respondent’s portal as required.
(vi) Sequel to the above facts, the respondent has gone ahead to upload the names of all the successful candidates in respect of the 2023 general election but unable to upload the name of the 1st plaintiff on the respondent’s website.
(vii) That the respondent has closed its portal thereby making it impossible to upload the 1st plaintiff’s name on her portal.
(viii) Consequently, it is therefore imperative for the Honourable Court to direct, compel and or mandate the respondent to immediately open her portal and allow the 1st plaintiff’s nomination form as the 2nd plaintiff’s candidate in the forthcoming election to be uploaded and to publish the 1st plaintiff’s nomination form containing his name and his other personal particulars as the 2nd plaintiff’s candidate representing Ibadan South East Local Government Constituency 1 (one) in the Oyo State House of assembly in the 2023 General election.”

The originating summons was supported with an affidavit of 19 paragraphs and a written address.

In opposition, the respondent filed a counter-affidavit of 5 paragraphs and which was supported with a written address.

After hearing the learned counsel for the parties, the trial Court, per Hon. Justice U. N. Agomoh, delivered a reserved judgment on the 19tth day of October, 2022 where the Court found that the appellants failed to establish their claim and that the suit “is completely devoid of merit”.

This appeal is against the said judgment.

The learned Senior Counsel distilled the following sole issue for the determination of the appeal:
“Taking into consideration the settled fact between the parties across the divide, to the effect that the 2nd appellant herein forwarded the name and required form of the 1st appellant herein to the respondent, albeit manually, within the time stipulated by the respondent and considering this settled fact under the relevant provisions of the law, more particularly Sections 29 and 84 of the Electoral Act, 2022, can it be lawfully and equitably contended that the appellants herein are not entitled to the relief south? Distilled from Grounds 1-5.”

On behalf of the respondent, learned counsel raised the following issue for determination:
“Whether the respondent can be compelled to accept and publish the 1st appellant’s name in view of the 2nd appellant’s failure to upload the name of the said 1st appellant as scheduled in the guideline?”

The summary of the appellants’ arguments is that even though the name of the 1st appellant was not forwarded electronically to the respondent, “the name of the 1st appellant was duly forwarded to the respondent within the stipulated time” and that “the directive of the respondent that the said name be forwarded electronically is contrary to the provision of the relevant law.” It was also contended by the appellants that “the respondent did not give sufficient time as required by the Electoral Act, 2022”.

In response, learned counsel for the respondent contended that “the issue of manual submission of names was never canvassed at the lower Court”. Counsel contended that since the appellants failed to prove their claim, the decision of the trial Court, which “is unassailable” should be affirmed.

After the hearing of the appeal on 23/11/2022, I posed some questions to the parties on the real name of the 2nd appellant. I have since found out that the actual name of the 2nd appellant is simply “ACCORD” and not “ACCORD PARTY”. The questions suo motu raised by the Court are not necessary and they are hereby withdrawn and discountenanced.

The affidavit in support of the appellants’ originating summons was deposed to by one Prince Ojo Kolade, the Oyo State Chairman of the 2nd appellant – which is a political party registered in Nigeria. He deposed, amongst other things, that the 2nd appellant conducted a “substitution primary election into Oyo State House of Assembly ….. on the 30th July, 2022 at Ajimobi compound, Oja’ba, Ibadan” with the respondent’s officials in Ibadan South East Local Government in attendance; and that the 1st appellant was unanimously elected as the 2nd appellant’s candidate to contest the election into Ibadan East Local Government Constituency 1 of Oyo State House of Assembly in the general election scheduled to hold on the 25th day of February, 2023. See paragraphs 5 and 6 of the affidavit in support of the originating summons. The deponent then deposed in paragraphs 7 – 12 of his affidavit as follows:
“7. That the 1st plaintiff duly completed the nomination form to contest the Oyo State House of Assembly election and the affidavit in support of his personal particulars and submitted same to the 2nd plaintiff.
8. That I also know that the 2nd plaintiff subsequently wrote a letter to the respondent whereby the 1st plaintiff’s name was forwarded to the respondent as the winner of the primary election conducted to elect the 2nd plaintiff’s candidate to contest the Ibadan South East Local Government Constituency 1 (one) election into the Oyo State House of Assembly. A copy of the 2nd plaintiff’s letter to the respondent to notify er of the 1st plaintiff’s candidacy is attached as Exhibit A1 while the list on the 2nd plaintiff’s ward delegates to the primary where the 1st plaintiff was elected is attached as Exhibit A2.
9. That I was informed by the 2nd plaintiff’s State secretary Mr. Yinka Dairo at the 2nd plaintiff’s office at Asunle area, Ibadan and I verily believed him that the 2nd plaintiff attempted to upload the 1st plaintiff’s nomination form and affidavit in support of his personal particulars to the respondent’s nomination portal but experienced technical problem on the respondent’s sever which made the uploading of the 1st plaintiff’s name impossible.
10. That I know as a fact that the respondent’s nomination portal is currently closed and same cannot be assessed now and nothing can be uploaded.
11. That as a result of the closure of the respondent’s portal, the 2nd plaintiff has been unable to upload the 1st plaintiff’s name and personal particulars to the respondent’s portal as its candidate for the election as a member, Oyo State House of Assembly representing Ibadan South East Local Government Constituency 1 (ONE) in the election coming up on the 25th February, 2023.
12. The date appointed by the respondent for the election into the Oyo State House of Assembly is the 25th of February, 2023 and unless the 1st plaintiff’s name and particulars are uploaded on the respondent’s portal, the respondent will not be able to publish the 1st plaintiff’s name as the 2nd plaintiff’s candidate in the forthcoming election and he will be denied the opportunity of contesting the election.”

In response, one Akinroluyo Bisola, a Litigation Assistant of the respondent, deposed in paragraphs 3 (c), (d), (e), (f) and (g) of the counter affidavit as follows:
“3(c). That paragraph 8 of the affidavit in support of Originating Summons is correct to the extent that submission of list of candidates by political parties to the respondent is to be done in accordance with the time table and schedule of activities for the 2023 general election drawn by the respondent pursuant to the Electoral Act, 2022 which time lines are sacrosanct. The said time table and schedule of activities for the 2023 general election is hereto attached as Exhibit INEC 1.
(d) I also know that neither the applicant nor any other political party challenged Exhibit INEC 1.
(e) That paragraph 10 of the affidavit in support of Originating Summons is true.
(f) In response to paragraph 11 of the affidavit in support of Originating Summons, at no time material to the submission of names of candidates for the 2023 general election did the system of the respondent crash. Rather, the system automatically shuts down upon reaching the specified deadline for submission and all names of candidates of each political party and this is not just clear in Exhibit INEC 1 but known to all the political parties who uploaded their candidates for the same election.
(g) In further response to paragraphs 10 to 11 of the affidavit in support of Originating Summons, all submissions of names of candidates by political parties for the state assembly elections, done via upload, on the dates clearly will be duly published on 4th October, 2022 based on Exhibit INEC 1 except where they failed to so upload within the very clear timeline allowed in Exhibit INEC 1 as it is apparent with the 1st and 2nd plaintiffs.”

I have read the affidavit and counter-affidavit filed by the appellants and the respondent, respectively, in the trial Court. The respondent tendered exhibit “INEC 1” which shows that, by the respondent’s time table, the last day for uploading and submission of substituted candidates by political parties for the 2023 Governorship and State Houses of assembly general elections was the 15th day of July, 2022. It has been recognized by the Supreme Court that the Independent National Electoral Commission, the respondent in this appeal, has the prerogative to issue time tables for general elections in Nigeria. See Agballah v. Chime (2009) 1 NWLR (Pt. 1122) 373, PPA v. INEC (2010) 12 NWLR (Pt. 1207) 70, CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493, Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) – 574, Shinkafi v. Yari (2016) 7 NWLR (Pt. 1511) 340 and Falake v. INEC (2016) 18 NWLR (Pt. 1543) 61.
Whilst considering the provisions of Section 30 of the Electoral Act, 2010 (as amended), in pari materia with those of Section 28 of the Electoral Act, 2022 the Supreme Court, in the case of National Democratic Party v. Independent National Electoral Commission (2013) 6 NWLR (Pt. 1350) 392 at 421, per Ariwoola, JSC (as he then was, now CJN) held as follows:
“It is not in doubt that the Independent National Electoral Commission (INEC) that is, the respondent herein, has the sole responsibility to decide when elections are to hold. See Peoples Democratic Party vs. Timipre Sylva & Ors (2012) 13 NWLR (Pt. 1316) 85 at 122. The respondent also reserves the prerogative to decide what time table to activities to publish for a General Election.”

The appellants did not state the dates and times they tried to upload the 1st appellant’s name and particulars, to the respondent’s portal, but the portal was closed. In my opinion, the trial Court was right when it found and held as founds:
“Now the evidence of the plaintiff is that they could not upload because the server of the defendant has technical problem which the defendant has denied as I stated earlier. I am of the firm view by the position of the law that the burden lies on the plaintiff who will fail if no evidence as regards the issue of the defendant’s server having technical problem is proved. He who asserts must prove. It is the plaintiff in this case that has in the affirmative stated that in uploading their documents that the server of the defendant had technical problem to prove that affirmative.
Having therefore given a calm and careful study of the facts that have played out, it is not difficult to appreciate the fact that Exhibit INEC 1 is clear and unambiguous, the plaintiffs herein by their Exhibit A1 concluded their selection on the 30th of July, 2022 and what was expected of them from Exhibit INEC 1 is to upload as required to the defendant. There is no evidence before the Court of the dates the server of the defendant as alleged had technical problem. This is a party that has from the said 30th July, 2022 when 1st plaintiff was elected to the 18th of August, 2022 in accordance with Exhibit INEC 1 to upload their document. The alleged system breakdown of the defendant’s server by the plaintiff has not been proved. He who asserts has the duty to establish his assertion in order to succeed. That is the essence of Sections 131 and 132 of the Evidence Act, 2011. For emphasis let me make it clear that it is the duty of the plaintiffs herein to establish their claim which they have failed to do.”

In both civil and criminal causes or matters, the law requires that parties must be consistent in their claims and will not be allowed to approbate and reprobate. See Iliyasu Suberu v. The State (2010) 1 NWLR (Pt. 1176) 494, Intercontinental Bank Ltd. v. Brifina Ltd (2012) 3 NWLR (Pt. 1316) 1 and Adeokin Records & Anor. v. Musical Copyright Society of Nigeria (Ltd./Gte.) (2018) 15 NWLR (Pt. 1643) 550.

The appellants ought to have been consistent with their claim, in the trial Court, that they could not forward the name of the 1st appellant and his particulars to the respondent “as a result of closure of the respondent’s portal”; instead of their claim in this Court that the name and particulars of the 1st appellant were forwarded to the respondent within time but not electronically.

By their own showing, the appellants have been indolent in submitting the 1st appellant’s name and particulars to the respondent in the manner, method, mode and time stipulated by the Guidelines and Time Table issued by the respondent and which should bind all the political parties in Nigeria. The law is trite that an indolent party, like the 2nd appellant in this appeal, will not be aided by a Court of law. See Jonason Triangle Ltd. v. CM & P Ltd. (2002) 15 NWLR (Pt. 789) 176, Osun State Independent Electoral Commission & Anor v. Action Congress & Ors (2010) 19 NWLR (Pt. 1226) 273 and Vincent Ugo & 3 Ors. v. Diokpa Ummuna & 4 Ors. (2018) 2 NWLR (Pt. 1602) 102.

The law is that a political party must obey its own Constitution and Guidelines. See the cases of Hope Uzodinma v. Senator O. Izunaso (No. 2) (2011) 11 NWLR (Pt. 1275) 30 and RT. Hon. Prince Terhement Tarzoor v. Ortom Samuel Ioraer (2016) 3 NWLR (Pt. 1500) 46. It is therefore of greater importance that a political party must obey the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral act, 2022 and Guidelines and Time Tables issued by the Independent National Electoral Commission for the conduct of elections in Nigeria.

I have advanced enough reasons for resolving the sole issue in this appeal against the appellants. For all the reasons given in this judgment, the live issue is hereby resolved in favour of the respondent and against the appellants.

This appeal is hereby dismissed for being bereft of any merit.

The judgment of the trial Court is hereby affirmed.

The parties are ordered to bear their respective costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, MOORE ASEZMO ABRAHAM ADUMEIN, JCA and I agree with the reasoning and conclusion arrived at in the leading judgment.

Indeed, a party must remain consistent in putting forward his case, he is not allowed to go forth and backwards, see JEGEDE & AMOR Vs. INEC & ORS (2021) LPELR-5548Z(SC) which held thus:
“The law is settled that a party must be consistent in his case as the law would not allow him to approbate and reprobate over the same issue. See SUBERU V STATE (2010) LPELR-3120(SC), INTERNATIONAL BANK LTD V BRIFINA LTD (2012) LPELR-9727(SC) AND UDE V NWARA (1993) 2 NWLR (pr.278) 638 AT 662-663.” Per AGIM, J.S.C

For these and fuller reasoning in the leading judgment, I also dismiss the appeal for lacking in merit. I also adopt other orders made therein.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft the leading judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.

In this appeal, the Appellants alleged they made efforts to upload the particulars of the 1st Appellant to the Respondent’s Portals without success. They attributed this to technical hitches with Respondent’s server. They however neglected to provide details of the dates the alleged technical problems were experienced. The law is that in circumstances such as that in this case, the Appellants as Plaintiffs have a duty to place sufficient materials before the Court to assist it in reaching a just decision. See INDEPENDENT NATIONAL ELECTORAL COMMISSION VS. ADVANCED CONGRESS OF DEMOCRATS (2022) 12 NWLR (PT. 1844)257: IN RE: YAR’ADUA (2011) 17 NWLR (PT. 1524)438 AT 491-482, PARAGRAPHS H-A, the Supreme Court, per Okoro, JSC held as follows:
“It is improper for a Court of law to enter judgment for a party on incomplete and inconclusive facts or evidence. A party ought to place all relevant facts before the Court to assist it to arrive at a fair and reasonable conclusion. See Felix Nyoye Adim v. Nigerian Bottling company Ltd. & Anor. (2010) 9 NWLR (Pt.1200) 543.”

The absence of adequate and acceptable explanation by the Appellants exposed the weakness in their case. The lower Court and indeed this Court cannot act on incomplete and inconclusive facts.

It is for the above reason and the fuller ones given in the leading judgment that I also find no merit in this appeal and dismiss same. I abide by the consequential orders in the leading judgment including the order that parties should bear their respective costs.

Appearances:

Musibau Adetunbi, (SAN) with him, R. O. Azeez, Esq. and F. T. Auchor, Esq. For Appellant(s)

Ayodeji Akerele, Esq. For Respondent(s)