AHMED TSOHO & ANOR v. IBRAHIM M. YAHAYA & ORS
(1999)LCN/0639(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 24th day of March, 1999
CA/E/EPSA/5/99
Before Their Lordships
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
IBRAHIM TANKO MUHAMMAD Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
Between
- AHMED TSOHO
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
- IBRAHIM M. YAHAYA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. KADUNA STATE ELECTORAL COMMISSION
4. THE ELECTORAL OFFICER (KUBAU)
5. THE PRESIDING OFFICER (KUBAU)
6. THE RETURNING OFFICER, (INEC) (KUBAU) Respondent(s)
RATIO
THE RULES THAT GOVERN THE CONDUCT OF ELECTIONS
In order to free our minds from possible confusions as to who is empowered to declare a candidate qualified to contest for an election and who is not and or, who is to declare the nomination of a candidate valid, it must be appreciated that two sets of rules are in force:-
(1) rules governing preliminaries to an election; and
(2) rules governing the conduct of an election.
Preliminary rules are those rules which determine intra party resolutions and nominations to elective offices.
The relationship here is between the political party in question, its members and the election body (INEC). But rules which govern the conduct of elections are those governing qualifications such as age, educational standard, tax payment as and when due, citizenship, non-involvement in the service of either the Federal, State, Local Governments or other bodies by the candidate wishing to contest as may be prescribed by the electoral law. For instance, paragraphs 4, 5 and 6 of Schedule 5 of Decree 3, 1999, have made provisions for nomination into the various elective offices. Paragraph 6(3) of the same schedule stipulates:-
“(3) Notwithstanding any other provision of this Decree or any other law, the decision of the Resident Electoral Commissioner or the Electoral officer, that a candidate has been validly nominated under sub paragraph 2 of this paragraph shall not be the ground of an election petition under this Decree.” PER MUHAMMAD, J.C.A.
QUALIFICATIONS WHICH QUALIFY A CANDIDATE TO BE ELECTED TO THE SEAT OF A MEMBER OF A STATE LEGISLATURE
Sections 18, 19 and 96 of Decree 3 of 1999 provide qualifications which qualify or disqualify a candidate to be elected to the seat of a member of a State Legislature, For the avoidance of doubt and for the amplification I intend to make further on such qualifications, it is pertinent to quote these qualification in extenso. Reference to all the sections quoted herein below are in respect of Decree No. 3 of 1999. These sections are:-
“18. Subject to the provisions of section 19 of this Decree, 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 30 years;
(c) he has been educated up to at least the school certificate level or its equivalent; and
he is a member of a political party and is sponsored by that political party.”
“19(1) No person shall be qualified for election to a House of Assembly if
(a) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or is otherwise declared to be of unsound mind; or
(b) he is under a sentence of death imposed on him by any court of law in Nigeria or a sentence of imprisonment for an offence involving dishonesty (by what ever name called) imposed on him by such a court or substituted by a competent authority for any other sentence imposed on him by such a court; or
(c) he has been convicted and sentenced by a court of law or tribunal established by law for an offence involving dishonesty or he has been found guilty of a contravention of the code of conduct under the Code of Conduct Bureau and Tribunal Decree 1989; or
(d) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt, under any law in force in any part of Nigeria; or
(e) being a person employed in the public service of the Federation or of any State, or any Local Government or Area Council, he has not resigned, withdrawn or retired from the employment at least 30 days to the date of the election; or
(f) he is a member of any secret society; or
(g) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or a tribunal under the Tribunals of Inquiry Act or any other law set up by the Federal, State or Local Government which indictment has been accepted by the Federal. State or Local Government or Area Council; or
(h) he has knowingly presented a forged certificate to the Commission.
(2) Where in respect of any person who has been
(a) adjudged to be a lunatic; or
(b) declared to be of unsound mind; or
(c) sentenced to death or imprisonment or adjudged or declared bankrupt.”
“96(1) A person shall not be qualified as a candidate to contest any Governorship or House of Assembly election unless –
(a) he is ordinarily resident in the constituency in which he is contesting the election or is an indigene of that constituency;
(b) he produces evidence of tax payment as and when due for a period of 3 years immediately preceding the yea, of the election or he is exempted from the tax payment;
(c) in the case of a candidate contesting the post of member of a House of Assembly, he has been nominated in writing by 15 persons whose names appear in the register of voters in the constituency in which he intends to contest the election;
(d) in the case of a candidate contesting the post Governor, he has been nominated in writing by 30 persons whose names appear in the register of voters for their respective wards and from at least two-thirds of all the Local Government Area in the State in which he intends to contest the election
(e) in the case of a candidate contesting the post of member of a House of Assembly, he has made to the Commission a non refundable deposit of N5,000;
(f) in the case of a candidate contesting the post of Governor, he has made to the Commission a non-refundable deposit of N25,000;
(g) he has not been dismissed from the public or civil service of the Federation or of a State or Local Government or Area Council.
(h) he has not been found guilty of an offence involving narcotic drugs or any other psychotropic substance under any law in force in Nigeria or abroad;
(i) he is qualified to vote in the constituency where he intends to contest the election;
(j) he has not been adjudged guilty of economic sabotage against Nigeria, or of treason or treasonable felony, by any court of law or tribunal;…..” PER MUHAMMAD, J.C.A.
MUHAMMAD, J.C.A. (Delivering the Leading Judgment): Elections into State legislature were conducted nationwide simultaneously with that of the governorship on the 9th day of January, 1999. 1st appellant as 1st petitioner at the tribunal below, contested for the membership of Kaduna State House of Assembly representing Eubau Constituency.
He was fielded by the Peoples Democratic Patty (PDP) 2nd appellant. The 1st respondent herein contested along with him. 1st respondent was fielded by the All Peoples Party (APP). At the end of the elections the 6th respondent returned the 1st respondent as the duly elected representative with 49,913 votes as against the 30,607 votes scored by the 1st appellant.
Dissatisfied with the election results, the appellants filed their petition to the Governorship and Legislative House Election Tribunal for Kaduna State. In the petition, the appellants alleged that:
“(a) The 1st respondent was at time of the election not qualified to contest and/or to be elected in the said election.
(b) The respondent was dismissed from the services of the High Court of Justice, Kaduna State.
(c) The 1st respondent’s appointment with the Kaduna State Judiciary was terminated on the ground of fraud.
(d) The purported scores recorded in Form BCBC (1) (Summary of results from wards) were forged, manipulated and false:
The appellants prayed the tribunal for the following declarations:
“(a) That the 1st respondent was not qualified to contest and/or to be elected into the Kaduna State House of Assembly.
(b) The 1st respondent was not duly elected and/or returned as his election was void.
(c) That the petitioner was duly elected and ought to have returned (sic) as duly elected having scored majority of lawful votes cast at the election.
Or in the alternative
That the election of 1st respondent is entirely void and the 2nd – 9th respondents should be ordered to conduct a fresh election forthwith.”
1st respondent entered his memorandum of appearance and filed his reply to the petition. 2nd – 6th respondents too, filed their joint reply to the petition. The respondents denied the allegations contained in the petition. Hearing commenced on the 2nd day of March, 1999 with the petitioner calling live witnesses. None of the respondents called any witness. The tribunal was addressed by counsel for the respective parties. In its judgment, the tribunal dismissed the petition. Unhappy with the tribunal’s decision, the appellants filed their notice of appeal which contained a ground of appeal.
In compliance with our practice direction No.2. learned counsel for the appellants filed the appellants’ brief in which he formulated the following issues:
“Whether the trial tribunal was right when having found as a fact that the 1st respondent was disqualified from contesting or from being elected as a member of Kaduna State House of Assembly, it was right to have refused to nullify the said 1st respondent’s election.”
The 1st respondent filed his brief as well and adopted the above issue formulated by the appellant. 2nd-6th respondents did not file any brief of argument.
On the hearing date, learned counsel for the appellants adopted his brief of argument. He had nothing to add to his brief. He urged this court to allow the appeal, learned counsel for the 1st respondent adopted his brief and urged us to dismiss the appeal.
In his arguments in the brief, learned counsel for the appellants submitted that the tribunal was wrong when it failed to nullify the election of the 1st respondent after finding as a fact that the 1st respondents was not qualified or was disqualified from being elected as a member of the Kaduna State House of Assembly. Learned counsel submitted further that after that finding, the tribunal could have nullified the election of the respondent as envisaged by section 137(1) of the State Government (Basic Constitutional and Transitional Provisions) Decree No.3 of 1999. He also cited the cases of DPN v. UNCP 1 ALR 30; Dangaladima & Anor v. Gada (1998) 1 ALR. 68. He finally argued that the provisions of sub-paragraph 6(3) of Schedule 5 to the Decree does not prevent the tribunal from nullifying the election of the 1st respondent.
In his argument and after having quoted the qualifications for a candidate to qualify him contest election into the State House of Assembly, learned counsel for the 1st respondent submitted that the procedure for the conduct of an election shall be in accordance with Schedule 5 to Decree 3 of 1999. learned counsel cited sections 130 and 134(1)(a) of Decree 3 of 1999. He finally argued that only complaints of undue election and undue return and not qualification can be contested before Election Tribunal. He cited in support the cases of – Chibola v. Bello & Ors. (1993) 1 NWLR (Pt.267) 107 at 117 EF & 118-119 ….; Chime v. Ndu (1993) 2 NWLR (Pt.277) 533 at 546 FH. Learned counsel urged us to dismiss the appeal and uphold the lower court’s decision.
Now in considering the sole issue raised by the appellants. I have to at the risk of repetition, re-state the fundamental issue in a concise form:-
Whether the tribunal was right in not nullifying 1st respondent’s election after having found him disqualified to contest for the election.
It is apparent from the printed record before this court that what brought about the above question are the findings and conclusions of the tribunal after evaluating the evidence und the law laid before it by the parties to the petition. It will be recalled that the most fundamental of the grounds upon which the petition was premised were as follows:-“(a) The 1st respondent was at time of the election not qualified to contest and/or to be elected in the said election.
(b) The respondent was dismissed from the services of the High Court of Justice Kaduna State.
(c) The 1st respondent’s appointment with the Kaduna State Judiciary was terminated on the ground of fraud.”
In its findings on the above allegations the tribunal found among other things:-
“We therefore found as a fact that by the combined effect of sections 19(1)(g), 96(1)(g) and 134(a) of the Decree 3 of 1999. the 1st respondent is not qualified to contest the election into Kaduna State House of Assembly held on the 9th day of January, 1999.
(see page 78. 3rd paragraph of the record).
After having carefully considered the evidence before the tribunal, the exhibits tendered and paragraphs 4.C(i) & (ii) and 6 of the respondents reply respectively, it is now found as a fact that 1st respondent’s appointment with the Kaduna State Judiciary was terminated on the ground of fraud: (see pg. 77 of the record, 1st paragraph).
In its conclusion, the tribunal stated:-
“Therefore, for all intents and purposes since the INEC has screened und found the 1st respondent qualified to contest the election, our finding in this case is in conflict with that of INEC.
Going by the provision of paragraph 5(3) of Schedule 5 to Decree 3 of 1999, the Resident Electoral Commissioner is given a final say, we therefore hold that our hands are tight to avoid the election of 1st respondent in this respect:’
In order to free our minds from possible confusions as to who is empowered to declare a candidate qualified to contest for an election and who is not and or, who is to declare the nomination of a candidate valid, it must be appreciated that two sets of rules are in force:-
(1) rules governing preliminaries to an election; and
(2) rules governing the conduct of an election.
Preliminary rules are those rules which determine intra party resolutions and nominations to elective offices.
The relationship here is between the political party in question, its members and the election body (INEC). But rules which govern the conduct of elections are those governing qualifications such as age, educational standard, tax payment as and when due, citizenship, non-involvement in the service of either the Federal, State, Local Governments or other bodies by the candidate wishing to contest as may be prescribed by the electoral law. For instance, paragraphs 4, 5 and 6 of Schedule 5 of Decree 3, 1999, have made provisions for nomination into the various elective offices. Paragraph 6(3) of the same schedule stipulates:-
“(3) Notwithstanding any other provision of this Decree or any other law, the decision of the Resident Electoral Commissioner or the Electoral officer, that a candidate has been validly nominated under sub paragraph 2 of this paragraph shall not be the ground of an election petition under this Decree.”
Sections 18, 19 and 96 of Decree 3 of 1999 provide qualifications which qualify or disqualify a candidate to be elected to the seat of a member of a State Legislature, For the avoidance of doubt and for the amplification I intend to make further on such qualifications, it is pertinent to quote these qualification in extenso. Reference to all the sections quoted herein below are in respect of Decree No. 3 of 1999. These sections are:-
“18. Subject to the provisions of section 19 of this Decree, 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 30 years;
(c) he has been educated up to at least the school certificate level or its equivalent; and
he is a member of a political party and is sponsored by that political party.”
“19(1) No person shall be qualified for election to a House of Assembly if
(a) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or is otherwise declared to be of unsound mind; or
(b) he is under a sentence of death imposed on him by any court of law in Nigeria or a sentence of imprisonment for an offence involving dishonesty (by what ever name called) imposed on him by such a court or substituted by a competent authority for any other sentence imposed on him by such a court; or
(c) he has been convicted and sentenced by a court of law or tribunal established by law for an offence involving dishonesty or he has been found guilty of a contravention of the code of conduct under the Code of Conduct Bureau and Tribunal Decree 1989; or
(d) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt, under any law in force in any part of Nigeria; or
(e) being a person employed in the public service of the Federation or of any State, or any Local Government or Area Council, he has not resigned, withdrawn or retired from the employment at least 30 days to the date of the election; or
(f) he is a member of any secret society; or
(g) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or a tribunal under the Tribunals of Inquiry Act or any other law set up by the Federal, State or Local Government which indictment has been accepted by the Federal. State or Local Government or Area Council; or
(h) he has knowingly presented a forged certificate to the Commission.
(2) Where in respect of any person who has been
(a) adjudged to be a lunatic; or
(b) declared to be of unsound mind; or
(c) sentenced to death or imprisonment or adjudged or declared bankrupt.”
“96(1) A person shall not be qualified as a candidate to contest any Governorship or House of Assembly election unless –
(a) he is ordinarily resident in the constituency in which he is contesting the election or is an indigene of that constituency;
(b) he produces evidence of tax payment as and when due for a period of 3 years immediately preceding the yea, of the election or he is exempted from the tax payment;
(c) in the case of a candidate contesting the post of member of a House of Assembly, he has been nominated in writing by 15 persons whose names appear in the register of voters in the constituency in which he intends to contest the election;
(d) in the case of a candidate contesting the post Governor, he has been nominated in writing by 30 persons whose names appear in the register of voters for their respective wards and from at least two-thirds of all the Local Government Area in the State in which he intends to contest the election
(e) in the case of a candidate contesting the post of member of a House of Assembly, he has made to the Commission a non refundable deposit of N5,000;
(f) in the case of a candidate contesting the post of Governor, he has made to the Commission a non-refundable deposit of N25,000;
(g) he has not been dismissed from the public or civil service of the Federation or of a State or Local Government or Area Council.
(h) he has not been found guilty of an offence involving narcotic drugs or any other psychotropic substance under any law in force in Nigeria or abroad;
(i) he is qualified to vote in the constituency where he intends to contest the election;
(j) he has not been adjudged guilty of economic sabotage against Nigeria, or of treason or treasonable felony, by any court of law or tribunal;…..”
The provisions made in the above sections in my view, are not only circumspective, self-explanatory but mandatory for any person wishing to contest for the membership of any State Legislature which is the scheme of the present political dispensation. They all are, a fundamental requirement. If a candidate fails to fulfil any, his candidature can be challenged. And if he is already elected whether by design or default, his election can equally be challenged before the tribunal, I readily find support in section 134(1)(a) of Decree 3 of 1999, which provides:-
“134(1) An election may be questioned on any of the following grounds, that is –
(a) that a person whose election is questioned was, at the time of the election not qualified, or was disqualified from being elected; …”
This same panel has already made its view known on the contrast between validity of nomination of a candidate and qualifications to contest elections. My learned brother M.D. Muhammad, J.C.A. with whom I fully agreed, stated in the case of Mohammed Dan Ango v. Aliyu Shehu Achida & Anor an unreported case withl appeal No. CA/K/KPLG/3/99 delivered on the 1st day of March, 1999, that-
“Where an electoral officer declares that a candidate is validly nominated, his decision as far as it affects the validity of the nomination, one cannot present a petition claiming that the candidate was not validly nominated. This effects the issue of nomination alone. One can challenge the qualification of a candidate to contest the election even if he is validly nominated.”
If that is the case then, was the lower tribunal correct to have interpreted the provision of paragraph 6(3) of Schedule 5 of Decree 3, 1999, to have tightened its hands in view of its earlier finding that the 1st respondent was disqualified to contest the said election. My answer is in the negative. I already have set out above the provision of paragraph 6(3) of Schedule 5 of the Decree. To my mind, the sole power of declaring a nomination of a candidate valid or invalid in order to contest for an election, rests exclusively with the Electoral officer. Thus in matters of nominations alone, the Electoral Officer is the final authority and his decision in that regard is not contestable. See Doukpolagha v. Ada George (1992) 4 NWLR (Pt.236) 444.
But the main function of the tribunal as is clear from section 131(1) of the Decree is to exercise to the exclusion of any other court or tribunal, original jurisdiction to hear and determine any question as to whether:
“(a) any person has been validly elected at an election under this Decree;
Thus, the duties of the tribunal, in contradiction to the duties of the electoral officer in relation to nomination, are purely limited to conduct of election and not nomination.
Nomination is an act of suggesting or proposing a person by name to an election body as a candidate for an elective office. This certainly forms part of the preliminary matters before the actual election is conducted. The person nominated has not yet come to occupy that office. So he is not yet to be coveted and not ripe to be contested. If he jumps the hurdles of nomination, his next Herculean task is to possess the mandatory qualifications which will admit him to contest the election. Once he stands for the election he can now properly be petitioned before the tribunal or he can himself petition others on any of the grounds upon which petitions can be filed to the tribunal as provided by the Decree. Section 134(1)(a) quoted above is on qualifications and disqualifications of a person whose election is questioned. The election of the 1st respondent in this appeal has been questioned by the appellant on grounds that at the time of the election he was not qualified to contest for the election on reasons given in the position. Therefore, the lower tribunal in my view, is properly caught up by the provision of section 134(1)(a) of the Decree. It cannot decline jurisdiction or power to deal with the non-qualifications of the 1st respondent. Furthermore, the tribunal itself made a finding that 1st respondent was disqualified from contesting the said election but was scared to annul the election because of the provision of paragraph 6(3) or Schedule 5 to the Decree. I think there was a misapprehension of the intent of this paragraph of Schedule 5 of the Decree by the learned member of the tribunal. There was nothing precluding the tribunal from making valid pronouncement on their findings. There is always need for the court or tribunal not to sit in vain. Akpan v. State (1992) 6 NWLR (Pt.248) 439. And then, had the tribunal pronounced its findings as a decision, 1st respondent would have clearly been thrown out of the chair he was at the election.
Be that as it may, the non-annulment of the election of the 1st respondent by the tribunal on the basis of his disqualification cannot be said to be in consonance with the provisions of Decree 3 of 1999 and can occasion a miscarriage of justice. The allegations against 1st respondent were outrageously serious. However, I cannot delve into the nature of such criminal allegations and the manner of proof required thereof as there is no cross-appeal challenging the tribunal’s findings on that.
As an appeal court, I can only interfere at this juncture to forestall possible miscarriage of justice which is likely to affect the right of the 1st appellant.
Accordingly, I hereby restore the findings of the lower tribunal that the 1st respondent was disqualified to contest the election into the Kaduna State House of Assembly as a member on the grounds of fraud and having been terminated from service on that ground. See N.I.D.B Ltd v. Sofresid Soji Drinks Ltd. (1992) 5 NWLR (Pt.242) 471; Ayua v. Adasu (1992) 3 NWLR (Pt.231) 598.
Finally, the decision of the lower tribunal based on the provision of paragraph 6(3) of Decree 3 of 1999 must and is hereby set aside. The findings of the tribunal to wit:
“We therefore found as a fact that the combined effect of sections 19(1)(g), 96(1)(g) and 134(a) of Decree 3 of 1999, the 1st respondent is not qualified to contest the election into the Kaduna State House of Assembly held on 9th day of January, 1999.” And the other finding that –
“After having carefully considered the evidence before the tribunal, exhibits tendered and paragraphs 4c(i) & (ii) and 6 of the respondents reply respectively, it is now found as a fact that 1st respondent’s appointment with Kaduna State Judiciary was terminated on the ground of fraud …” are hereby restored and 1st respondent is accordingly declared unqualified to contest the election into the Kaduna State House of Assembly as a member held on the 9th day of January, 1999.
By the provisions of section 137(1) of Decree 3 of 1999, where a candidate is found not to have been validly elected on any ground such as the ones found by the tribunal against the 1st respondent, the tribunal shall declare the election a nullity. Accordingly, I declare that election a nullity and order INEC to conduct a fresh election in respect of membership into the Kaduna State House of Assembly for the Kaduna Constituency.
This appeal is therefore allowed. I make no order as to costs.
I.T. MUHAMMAD, J.C.A.: I have read before now the judgment of my learned brother I.T. Muhammad, J.C.A. just delivered. He has thoroughly dealt with the issue raised in this appeal. I am in complete agreement with his reasoning and conclusion. I only wish to comment briefly on the import of paragraph 6(3) of the State Government (Basic Constitutional and Transitional Provisions) Decree 1999 – Decree No.3 of 1999.
Paragraph 6(3) provides:-
Notwithstanding any other provision of this Decree or any other law, the decision of the Resident Electoral Commissioner or the Electoral Officer, that a candidate has been validly nominated under sub-paragraph (2) of this paragraph shall not be the ground of an election petition under this Decree.”
The way I understand the above quoted provision is that the decision of an Electoral Officer with regards to the nomination of a candidate is final and cannot be made a ground of an election petition. It is my opinion this is in respect of nomination only. The provision does not preclude the tribunal from examining whether or not a person is qualified to contest an election. I agree that one cannot present a petition to claim that a person who has been declared by an Electoral Officer as validly nominated that such a person was not validly nominated, but a petition can be presented challenging the qualification of such a person to contest an election e.g. he has not attained the required age to contest such an election, or has not paid his tax as and when due or was a civil servant or was convicted and sentenced by a court of law etc. All these could be made grounds of an election petition. This is moreso if we consider section 134(1) of Decree No.3 of 1999 which provides:-
“S.134(1) An election may be questioned on any of following grounds, that is-
(a) that a person whose election is questioned was, at the time of the election not qualified, or was disqualified from being elected.”
The above provision is clear, and unambiguous. The qualification or otherwise of a person can be questioned in an election petition.
It should be noted that paragraph 6(3) belongs to the schedule to the Decree while section 134 is part of the body of the Decree. Even though schedules, tables and forms are useful in construing the provisions in the body of a statute, they will not overrule the plain words of the statute. See F.C.S.C. v. Laoye (1989) 2 NWLR (Pt.106) 652 where it was stated at page 711 that:-
“Schedules, tables and forms are useful in construing the provisions in the body of a statute. In cases of ambiguity, they become useful handmaid to interpretation. But they will not over-rule the plain words of the statute. If there is any contradiction, the enacting clause will prevail. It would be quite contrary to recognized principles of construction of statutes to restrain the operation of clear and unambiguous words or sections by reference to what appears in a schedule, table or form.”
As I have earlier stated, the provision of section 134 of Decree No.3 of 1999 is clear and unambiguous. Its operation cannot be restrained by reference to the provisions of Schedule 5. It is therefore my considered opinion that the qualification of a person can be challenged in an election petition despite the provision of paragraph 6(3) of Schedule 5 to Decree No.3 of 1999.
It is for these reasons and the fuller reasons given in the lead judgment that I allow the appeal. I abide by all the consequential orders made by my learned brother.
OMAGE, J.C.A.: On the only ground of appeal filed in this matter the issue submitted for determination by the appellant is as follows:-
“Whether the trial tribunal was right when having found as a fact that the 1st respondent was disqualified from contesting or from being elected as a member of Kaduna State House of Assembly it was right to have refused to nullify the said election.”
Thus the issue goes directly to the decision of the Election Tribunal holding in Kaduna when it found and ruled that the 1st respondent was indicted or tried because the 1st respondent was queried on allegation of fraud. The lower tribunal ruled that by the combined effect of sections 19(1) and 134(a) of the Decree 3 of 1999 the 1st respondent was not qualified to contest the election into Kaduna State House of Assembly held on 9th day of January, 1999. The tribunal made the finding by the provisions of section 19(1)(g) of Decree 3 of 1999 which says: “No person shall be qualified for election to a House of Assembly if (g) he has been indicted for embezzlement fraud by a Judicial Commission of Inquiry or a tribunal under the tribunal of Inquiry Act or any other law set up by the tribunal, State or Local Government, which indictment has been accepted by the Federal, State or Local Government Area Council.” Also section 96(1)(g) to Decree No.3 of 1999 provides: “that a person shall not be qualified as a candidate to contest any Governorship or House of Assembly election unless he has been dismissed from the Public or Civil Service of the Federation or of a State or Local Government Area Council.”
The application of one or both provisions above to the case in hand should have entitled the lower Tribunal to determine and nullify the election of the 1st respondent, more so when the law subscribes in section 134(1) of Decree No.3 of 1999 and prescribes that “an election may be questioned on any of the following grounds that is to say section 134(1 )(a) “that a person whose election is questioned was at the time of the election not qualified or was disqualified from being elected.”
However, in paragraph 6(3) of Schedule 5 to Decree No.3 of 1999, it is provided as follows: –
“Notwithstanding any other provision of this Decree, on any other law the decision of the Resident Electoral Commission or the Electoral Officer that a candidate has been validly nominated under sub-paragraph (2) of this paragraph shall not be ground of an election petition under this Decree.”
It is a fact that the election petition was brought under this Decree. It is assumed, because no evidence was adduced otherwise in the court below that the 1st respondent has been validly nominated before he contested the election.
However the valid nomination of a contestant to the position in Governorships or House of Assembly seat does not per se impute that the person is qualified to contest the election in accordance with the provision of section 134(1) of Decree No.3 of 1999. I respectfully venture to state as above because I have considered the provisions of section 134(1) which states among others, the grounds for questioning election petition, and includes:
“(d) that the petitioner was validly nominated but was unlawfully excluded from the election.”
This sub-provision suggest two propositions:
(1) when it says “validly nominated” and unlawfully excluded from the election means a seemingly valid nominated contestant may in fact be invalid and may be removed or excluded from the election.
Or exclusion from such invalid nomination is lawful; particularly if a valid nomination may be unlawfully excluded from election.
The underlining and unstated but obvious issue is this, it is only a regular court of law not a tribunal under the Decree 3 of 1999 which can determine the issue of the validity of an invalid nomination. That will be at the stage of nomination before election. If the candidate for nomination is dissatisfied with the appellate body of the electoral body. Therefore the regime of law which govern such a situation is what the provisions in the Schedule 5 sub-paragraph 5(3) is concerned with. It is a matter of conduct of the election within his ambit of the Electoral Commission, see section 94 Decree No.3 of 1999. Since a body exists at that stage which deals with appeals from such complaint. To allow a petition under the Decree to be founded on such a ground of nomination will be retrogressive in a concluded matter of nomination to contest the election.
This in my respectful view is why the provision is inserted in the schedule saying
“Notwithstanding any other provisions of this Decree any other law the decision of the Resident Electoral Commissioner or the Electoral Officer that a candidate has been validly nominated. (Please mark the word nominated not elected) under sub-paragraph (2) of this paragraph shall not be the ground of an election petition under this Decree. ”
The index to qualification to occupy the seat of an election office is as contained in section 134(1) of Decree No.3 of 1999. When therefore the judges of the lower tribunal have found that the election of a candidate is voided by reason of the non compliance of the candidate with provisions of the Decree No 3 of 1999 it is their duty to enforce the Decree. To refuse to do so is to abdicate their responsibility on an incompetent ground. The ground is incompetent because it confused the issue of valid nomination to contest election with qualification to occupy an election position. The provisions in Schedule 5,3 (2) merely clarifies the issue of nomination it did not tie the hands of the lower tribunal.
In agreement with the conclusions of my learned brother I.T. Muhammad, J.C.A., in his judgment which I have had the benefit to read in advance I too set aside the subsequent order of the lower tribunal in this appeal, and restore the main findings as contained in the record in this appeal with the consequential order that the lower tribunal should have made by declaring the 1st respondent unqualified to contest the election, consequently the election is voided, it is declared a nullity. I hereby direct the 2nd respondent in the appeal, the Independent National Electoral Commission to conduct a fresh election in respect of the Kaduna State House of Assembly for Kubau.
I abide by the consequential orders in the lead judgment.
Appeal allowed.
Appearances
- U. Usman (with B. Omoloba (Mrs.)- for the 1st Appellant For Appellant
AND
Yahaya Mahmood – for the 1st Respondent
2nd – 6th Respondents absent and unrepresented. For Respondent
