Sylvester Nwenugu Nwite V. Ude-umanta Anoke Michael & Ors (2008)
LawGlobal-Hub Lead Judgment Report
JIMI OLUKAYODE BADA, J. C. A.
This is an appeal against the Judgment of the Governorship and Legislative Houses Election Tribunal sitting at Abakaliki, Ebonyi State, delivered on 11th day of September, 2007 wherein the return of the 1st Respondent now Appellant as the winner of the election to the Onicha West Constituency seat of Ebonyi State House of Assembly was nullified and a bye-election ordered.
Dissatisfied with the Judgment, the appellant filed this appeal.
The 1st Respondent/Appellant formulated three issues for determination as follows:-
“(1) whether the trial tribunal was right in holding that non-joinder of PDP did not render the petition incompetent.
(2) Whether the lower tribunal was right in holding that the Petitioner proved his status as a candidate in the election entitling him to file the Petition in his individual capacity alone.
(3) Whether the lower Tribunal was right in holding that 1st Respondent failed to discharge the onus on him.”
The Petitioner/Respondent also formulated four issues for determination as follows:-
“(1) whether the Tribunal was right in holding that the Petitioner/Respondent and not the Appellant was the validly nominated candidate of the Peoples Democratic Party of Nigeria (PDP,) for Onicha West constituency of Ebonyi State in the State House of Assembly election held on 14/4/07.
(2) Whether the Tribunal had the Jurisdiction to entertain the complaints made by the Petitioner/Respondent in his election petition/regarding his valid nomination but unlawful exclusion from participation in the House of Assembly election held on 14/4/07 by INEC into Onicha West State Constituency of Ebonyi State.
(3) Whether the tribunal was right when it admitted in evidence Exhibits 4, 5, and 6 with or without objection and relied partly on them in reaching its decision and whether this occasioned any miscarriage of justice.
(4) Whether the tribunal was right in holding that the Petitioner/Respondent had the competence to file this petition in his own standing without joining the Peoples Democratic Party as a co-petitioner or as a respondent in the Petition,”
The 2nd to 4th Respondent formulated three issues for determination as follows:-
“(1) Whether INEC has the legal capacity to reject any candidate presented to it by a political party for purposes of elections.
(2) Whether the Peoples Democratic Party was not a necessary party whose testimony was necessary and indispensable for just determination of the Petition.
(3) Whether the lower Tribunal was right in holding that the 3rd respondent nominated and/or sponsored the 1st Respondent as a candidate for Onicha West Constituency of Ebonyi State House of Assembly,”
At the hearing, Learned Counsel for the parties adopted and relied on their respective briefs of argument.
The issues for determination presented by the parties are identical in con, however the issues as set out by the Appellant are considered relevant and apt to determine this appeal.
ISSUE 1.
It was submitted on behalf of the Appellant that the legal right or interest of the sponsoring political party is direct assailed and directly in con whenever it is alleged that the nominated candidate was wrongfully excluded from contesting the election. Such a dispute according to the Learned Senior counsel for the appellant necessarily affects the exclusive right of the sponsoring political party and therefore renders the political party a necessary party to this dispute in litigation. He relied on the case of – Peoples Democratic Party v. Kwara State Independent Electoral Commission & Others (2006) 3 NWLR Part 968 Page 565.
Reference was made to paragraphs 1, 5, 6, 10, 11 & 12 of the Amended Petition at Pages 72 to 76 of the record vis-a-vis paragraphs 2, 3, 4, 5, 8, 10, 11, 12, 15, 17 to 24 of the 1st Respondent’s reply at pages 26 to 33 of the record. He then contended that PDP ought to be joined as a necessary party.
Learned Senior Counsel for the appellant submitted that the lower Tribunal was in grave error when it failed to uphold the argument that the non-joinder of the PDP as a party was fatal to the Petitioner. He went further in his submission, that it is a grave error and miscarriage of Justice for the Court or Tribunal to depart from the parties contest as joined in their pleadings. He referred to the following cases:-
– Ige v. Olunloyo (1994) 1 SCNLR Page 158.
– Ekpeyong v. Nyong (1975) 2 S.C. Page 71.
– Ngige v. Obi (2006) 14 NWLR (Part 999) Page 1 at 226.
He finally urged that this issue be resolved in favour of the Appellant.
The Petitioner/Respondent in his submission stated that once he successfully scaled the hurdle of proving that he was the validly nominated candidate of PDP in the election in question, and that he did not withdraw from the said election, or that he was not validly substituted by PDP, but that INEC nonetheless excluded him from participation, he (the Petitioner/Respondent) alone or in addition to his said party could properly present an election petition before the Tribunal. He relied on the case of – Buhari v. Yusuf (2003) 14 NWLR (Part 841) Page 446 at Page 499 Paragraph C-E. AND – Section 34 of the Electoral Act 2006.
The 2nd to 4th Respondents in their submission stated that nomination, sponsorship and substitution of candidate is a prerogative right of political parties in party democracy, and it follows that any action/petition challenging the authority or validity of such nomination or raised controversy there-from must necessarily join the Party as an indispensable and necessary party to the petition.
Learned Counsel went further in his argument that both Petitioner and Respondent had joined issues to the effect that they were both nominated by the PDP as the party’s candidate for the Onicha West Constituency of Ebonyi State House of Assembly election. Thus the fulcrum upon which the petition revolves is the PDP nomination. The question then is that- Can this Petition be fully and fairly determined without making the PDP a party?
According to Learned Counsel for the 2nd to 4th Respondents, the answer will be in the negative because the PDP being an indispensable and necessary party and the party’s nomination being the spring board from which both Petitioner and Respondent launched their claims ought to be joined as a party He relied on the following cases:-
– Okonkwo v. Ngige (2006) 8 NWLR Part 981 Page 119.
– Jidda v. Kachallah (1999) 4 NWLR Part 559 at Page 426
– Peoples Democratic Party (PDP) Vs. Kwara State Independent Electoral Commission & Others (supra).
In the instant appeal the first issue to be considered is whether the non-joinder of (PDP) Peoples Democratic Party did not render the petition before the lower Tribunal incompetent.
It is trite that the only reason which makes it necessary to make a person or institution a party to an action is to make him or it to be bound by the result of the action. Therefore when it appears that the real issue in dispute in an action cannot be effectively and completely settled unless that person or institution is made a party that person or institution will be made a necessary party.The Learned Senior Council for the 1st Respondent/Appellant submitted that the Legal Right or interest of the sponsoring party is directly assailed or directly in con whenever it is alleged that the nominated candidate was wrongfully excluded from contesting the election.
It is in the record of proceedings that the case of the Petitioner on the pleadings was that he was nominated by the peoples Democratic Party PDP as the candidate for the Onicha West Constituency of Ebonyi State House of Assembly election and that his name was forwarded to the third Respondent and he was issued with Forms CF001 and EC4B (iii) for nominated members for the State House of Assembly elections and that he duly filled the forms. The Petitioner’s case was also that his nomination was re-affirmed by the PDP to the third Respondent by a letter dated 14th day of December, 2006 written and signed by the National Chairman of the Party and that the third respondent included his name on the list of candidates published prior to the final list of 8th day of March, 2007 and that he was screened and Cleared by the third Respondent for the election. The Petitioner testified in support of the averments referred to above and tendered a copy of the letter written by the National Chairman of the PDP confirming his candidacy to the third Respondent as Exhibit 2, copies of Forms CF001 and EC4B(iii) issued to his by the third Respondent and which he filled was tendered as Exhibits 4 and 5 and a list of candidates which he stated that the third Respondent published prior to the final list of 8th March, 2007 also tendered and marked as Exhibit 6 and the name of the Petitioner appeared on Page 13 of the Exhibit 6 as the candidate of the Peoples Democratic Party (PDP) for the Onicha West Constituency of Ebonyi State House of Assembly.
The 1st Respondent/Appellant on the other hand denied the facts pleaded by the Petitioner and he pleaded that it was incorrect that the Petitioner was nominated by the PDP as it’s candidate and also that it was the Petitioner that unlawfully forwarded his name to the 3rd Respondent. But he did not lead evidence on how the name of the Petitioner was lawfully removed by PDP as its candidate.
The 2nd to 4th Respondents in their own case admitted that the petitioner was nominated by the PDP as candidate for Onicha West Constituency of Ebonyi State House of Assembly and that his name was forwarded to the 3rd Respondent and consequently the third Respondent issued him with forms CF001 and EC4B (iii) for nominated members of the State House of Assembly elections and he duly filled the forms. They also admitted that the Petitioner was screened and cleared by the third Respondent for the election. They did not deny the receipt of Exhibit 2 from the National Chairman of PDP re-affirming the nomination of the Petitioner as it’s candidate, and further that Exhibit 2 carried on it’s face evidence of it’s receipt by the Respondent. They did not deny that the third Respondent included the Petitioner’s name in the list of candidates it published prior to its final list of 8th March, 2008.
The case of the 2nd to 4th Respondent was that although the PDP had earlier submitted the name of the petitioner as it’s candidate for the election,the name of the Petitioner was subsequently substituted by a letter dated 7th day of February, 2007 addressed to the third Respondent. However they did not lead any evidence in support of their case on the Pleadings.
Under Section 34 of the Electoral Act 2006, a candidate once duly nominated by his political party remains so for all intents and purposes concerning the election for which he was nominated as a candidate. And a Political Party that seeks to change its earlier nominated candidate must comply with provisions of Section 34 of the Electoral Act 2006. See – Ugwu Vs. Ararume (2007) 12 NWLR Part 1048 Page 367.
In view of the foregoing, it is my view that in the absence of any evidence from 1st Respondent and 2nd to 4th Respondents that the Petitioner/Respondent who was earlier nominated by PDP was validly substituted, he remained in fact and in law the candidate of PDP in the House of Assembly election of 14/4/07 for Onicha West Constituency of Ebonyi State.
At this juncture, it would be necessary to examine Sections 144 and 145 of Electoral Act 2006 in order to determine whether or not PDP is a necessary party.Section 144(1) of the Electoral Act 2006 states as follows:-
“An election petition may be presented by one or more of the following persons:-
(a) a candidate in an election
(b) a political party which participated, in the election.”
A community reading of the above section and Section 145(d) of the Electoral Act 2006 showed clearly that the Petitioner/Respondent alone is entitled to present a petition where his complaint arose from valid nomination but unlawful exclusion. The operative word used in both sections is “OR”.
Section 144(2) of the Electoral Act 2006 makes adequate provisions for those that could be joined as Respondents in an election petition. If the Petitioner complains of the conduct of those who took part in the conduct of the election they will be joined as co-respondents.”
In this appeal under consideration, the PW2 in his evidence before the Tribunal stated that he was sent by PDP to testify for the Petitioner/Respondent (See Pages 185 to 186 of the Record).
Furthermore it is also on record that the Petitioner had no complaint against the PDP.
The Supreme Court in Buhari v. Yusuf (2003) 6 S.C.N.J Page 344 held among others that political parties are not necessary parties to an election petition. Also this Court in Ngige v. Obi. (supra) at 178 paragraph F-G and 179 paragraph D-F:- held that it is not necessary to join a party against whom no complaint is made to an election petition.
Even though both the Petitioner/Respondent and 1st Respondent/Appellant claimed that they were PDP’s candidate, since PDP official opted to be a witness in the Election Petition and also since no allegations were made against the party, it is therefore my view that PDP is not a necessary party to this petition and its non-joinder did not render the petition incompetent.
This issue is therefore resolved against the 1st Respondent/Appellant.
ISSUES 2 & 3 (Taken together)
Learned Senior Counsel for the 1st Respondent/Appellant referred to Section 144(1) of the Electoral Act 2006 and submitted that a duly nominated and sponsored candidate whose name is not included in the list of nominated candidates standing for the election published by INEC and whose substitution and or withdrawal by the political party runs foul of the restrictions imposed by Section 34(2) of the Electoral Act is conferred with Locus Standi to challenge the non-inclusion or removal of his name from the published list by seeking appropriate redress in the High Court (State or Federal) by filing a civil claim in the regular Court or Tribunal. He went further that such an aggrieved candidate cannot file a petition before the Election Tribunal unless he had acquired the legal status of a candidate in the election before the cause of action arose.
He also submitted that a candidate whose name is not contained in the final list published by INEC is not, and cannot legally be described as a candidate at the election. He relied on the case of – Adebusuyi v. Oduyoye (2004) 1 NWLR Part, 854 at 406 Page 438 at paragraphs G to H.
Learned Senior Counsel also referred to Exhibit 4, 5 and 6 and he submitted that the said Exhibits are legally inadmissible in that they are public documents and none of which was Certified True Copies as prescribed in Section 111 of the Evidence Act. He also went further in his submission that Exhibit 2 was wrongly admitted because it is at variance with the pleadings. He relied on – Agbaje v. Adigun (1993) 1 NWLR Part 269 at Page.261.
The Learned Senior Counsel for the 1st Respondent/Appellant finally urged that Exhibits 2, 4, 5 and 6 be expunged from the record, and further that once the exhibits are expunged the findings of fact based and the documents would collapse. He finally urged that the issue be resolved in favour of the appellant.
The Petitioner/Respondent’s Counsel in his submission stated that a relief questioning the return of the Appellant as the winner of the said election which was held on 14/4/07, is a post-election dispute which falls within the exclusive original jurisdiction of Election Tribunals as envisaged by Section 285(2) of the 1999 Constitution of the Federal Republic of Nigeria.
He also relied upon:-
– Section 145(1)(b) & (d) of Electoral Act 2006 and the case of – Ugwu v. Ararume (Supra). .
He submitted that the Election Tribunal rightly assumed Jurisdiction to hear and determine the Petition under consideration.
On the issue of the Exhibits 2, 4, 5 and 6 tendered by the Petitioner/Respondent, he submitted that since the Notice to Produce was filed and served upon INEC asking it to produce the documents and INEC failed to produce them at trial, then in line with Sections 97 and 98 of the Evidence Act, once INEC refused to produce the said documents, the petitioner was at liberty to tender secondary evidence of the documents.
Finally the Learned Counsel for the Petitioner/Respondent urged that the issue be resolved in favour of the Petitioner/Respondent.
The Learned Counsel for the 2nd to 4th Respondents in his own submissions stated that the Petitioner/Respondent did not fall within the purview of Section 144 of Electoral Act 2006 and therefore lacked the Legal Capacity or Locus Standi to present the petition. He went further that the lower tribunal should not have assumed jurisdiction in this matter because the Petitioner’s allegation were pre-election matters. He relied on the following cases:-
– Okonkwo v. INEC (2004) 1 NWLR Part 884 Page 242.
– Rimi v. INEC (2005) 6 NWLR Part 920 Page 56.
– Ararume v. INEC (2007) 9 NWLR Part 1038 Page 127.
The relief of the Petitioner/Respondent before the Election Tribunal are as follows:-
WHEREFORE, Your Petitioner prays that it be determined:
(a)That the exclusion of the petitioner from participation in the above election held on 14/4/07 by the 3rd Respondent on account of the non-inclusion of the petitioner’s name in the list of duly nominated, verified, and cleared candidates for Onicha west Constituency of Ebonyi State House of Assembly, published on 8/3/2007 vitiated the outcome of the above election, as the said action of the 3rd Respondent is illegal, null, void, and of no effect.
(b) That the 3rd Respondent cannot validly nominate and/or sponsor a candidate to run in the above election as it did by its unilateral inclusion of the name of the 1st Respondent in the list of nominated, verified, and cleared candidates for Onicha West Constituency of Ebonyi State House of Assembly published on 8/3/2007 leading to the participation of the 1st Respondent in the above election of 14/4/2007
(c) AN ORDER nullifying the conduct and outcome of the above election held on 14/4/2007 into the Onicha West Constituency of Ebonyi State House of Assembly by the 3rd Respondent.
(d) AN ORDER directing the 3rd Respondent herein to conduct a bye election in Onicha West, Constituency of Ebonyi State into Ebonyi State House of Assembly with the name of the Petitioner included in the List of candidates duly nominated, verified and cleared by the 3rd Respondent to contest the above election.
(e) That the 1st Respondent in any case is ineligible in the first instance to have contested the April 14, 2007 House of Assembly election as a candidate of the Peoples Democratic Party for onicha West Constituency of Ebonyi State in the con of the clear provisions of Section 107(1)(f) of the 1999 Constitution of the Federal Republic of Nigeria, Sections 32 and 34 of the Electoral Act 2006 as amended, and Section 32(b) of the Peoples Democratic Party Electoral Guidelines 2006.”
(See Pages 77 to 78 of the Record).
A careful examination of Section 285(2) of the 1999 Constitution of the Federal Republic of Nigeria and Section 145(1) (b) & (d) of the Electoral Act 2006 vis-a-vis the relief being claimed by the Petitioner/Respondent showed that his right of access to the Tribunal is guaranteed both by the 1999 Constitution and the Electoral Act 2006.
The contention of the Petitioner/Respondent is that he was nominated and sponsored by the Peoples Democratic Party (PDP) and his name was initially published by INEC in its list of duly nominated and verified candidates. But that when the final list was published his name was not included and the appellant’s name was now included in that final list. The 1st Respondent/Appellant however claimed that the primary election at which the petitioner/Respondent emerged victorious was cancelled and another primary election was conducted at which he was declared the winner.
There is no doubt that the name of Petitioner/Respondent was forwarded to INEC by his Political Party i.e. Peoples Democratic Party before his name was substituted with that of the 1st Respondent/Appellant. .
In Ararume v. INEC (Supra) it was held among others that-
“… The issue of primaries, selection of candidates to contest an election at any given time is the preserve of the political parties exclusively outside the province or competence of courts, court shall not impose a candidate on a Political party.
That position or stand has now changed with the provision of Section 34(1) and (2) of the Electoral Act 2006 which has created and placed an extra duty on INEC in its supervisory role over the affairs of the political parties. Cogent and verifiable reasons are weapons to be employed by INEC when taking a decision to substitute a candidate. The procedure engaged can be challenged in court for interpretation of the section. See – Onuoha v. Okafor (1983) 2 SCNLR Page 244; Chukwu v. Icheonwu (1999) 4 NWLR Part 600 Page 587; Owuru v. INEC (1999) 10 NWLR Part 622 page 21; Adebusoye v. Oduyoye (2004) 1 NWLR Part 854 Page 406; Dalhatu Vs. Turaki (2003)15 NWLR Part 843 Pages 310.
…
…
…
…
Remi v. INEC (2005) 6 NWLR part 920 Page 56 referred to.”Consequently it is my view that post election disputes arising from a breach or violation of the provisions of Electoral Act 2006 can be challenged by an aggrieved party before an Election Petition Tribunal.
See – Ugwu v. Ararume (supra).
– Effiong v. Ikpeme (1999) 6 NWLR Part 606 Page 260 at 278.
Therefore the Election Petitions Tribunal rightly assumed jurisdiction to hear and determine this petition now on appeal to this Court.
On the issue of Exhibits 2, 4, 5 and 6 tendered by the petitioner/Respondent and which Learned Senior counsel to the 1st Respondent/Appellant urged that should be expunged. It is true that Exhibits 4, 5 and 6 mentioned emanated from INEC and they are therefore public documents which should be made available to any interested person on application and payment of necessary fees. It was stated that the Petitioner/Respondent filed and served a Notice to Produce on INEC but that it failed to produce the documents at the trial.
In my humble view and in line with Sections 97 and 98 of the Evidence Act, once INEC refused to produce this said documents after proper Notice was duly served on it the Petitioner/Respondent was at liberty to tender secondary evidence of Exhibits 4, 5 & 6.
In his book titled “Electoral Law and Practice” First Edition 2003 at pages 260 Chief Afe Babalola SAN had this to say on admissibility of documentary evidence in election cases:-
“The Rule of evidence relating to admissibility of oral and documentary evidence also applies in election cases. Admissibility of documentary evidence in election matters however have their own peculiarities which sometimes take them away from the general rules of evidence.”
The full panel of the Supreme Court in Nwobodo v. Onoh (1983) NSCC Vol. 14 Page 470 treated election petition proceedings as “Peculiar Civil Proceedings.” Sowemimo JSC as he then was who delivered the lead ruling held thus:-
“On the admissibility of election returns in election petition, which I regard as a peculiar civil proceedings, I will prefer to consider all the documents in this case as relevant, whether primary, secondary or duplicate, originals, for a determination of this matter on the merits.”(Page 472).
In view of the foregoing and taking a cue from the revered view of the Supreme Court, I am of the view that since the documents have not been shown not to be what they purport to be and there is no evidence that the document has occasioned any miscarriage of Justice, they are considered relevant. And the said Exhibits 2, 4, 5 and 6 were properly admitted and the evaluation done on them by the Election Petitions Tribunal is in order.
Learned Senior Counsel for the 1st Respondent/Appellant also referred to the evidence of 1st Respondent (DW1) and his witnesses DW2 and DW3. He stated that a proper appraisal of the recorded pertinent legally admitted evidence proffered for the 1st Respondent/Appellant at the trial will show that that the 1st Respondent did not fail to discharge the onus of proof on him. He went further in his argument that by failing to file Petitioner’s Reply to join issues on the alleged rescheduled primary of 12/11/06, the petitioner is deemed to have admitted that there was such a rescheduled primary and furthermore that the 1st Respondent emerged as the sponsored flag bearer of PDP for the election. It was also contended that the Petitioner did not raise any issue on wrongful substitution.
The Learned Senior Counsel for the 1st Respondent/Appellant finally urged that this issue should be considered in his favour .
The Petitioner/Respondent’s Counsel in his own submission stated that the Petitioner established the four hurdles which a petitioner who alleges unlawful exclusion from an election must surmount in order to succeed.
He referred to the case of:- Effiong v. Ikpeme (1999) 6 NWLR Part 606 at Page 260 particularly at 274 to 275 paragraph H to C.
He also referred to the testimony of PW2 at pages 185 to 186 of the Record where he stated that he was the Electoral Officer sent by PDP to conduct primaries of 18/11/06 and that the exercise was peaceful, and that at the end, the Petitioner/Respondent won with 124 votes to the Appellant’s 26 votes.
Learned Counsel finally submitted that the Tribunal was right when it disbelieved the evidence of Appellant regarding the alleged nomination by PDP and held that the Petitioner/Respondent proved that he was validly nominated by PDP.
The Learned Counsel for the 2nd to 4th Respondents in his submissions stated that the Petitioner did not prove his case on balance of probability since no officer of the necessary party – PDP which nominated, sponsored, substituted and submitted the names of the contesting parties to INEC was called to give evidence. He relied on the case of Balonwu v. Chinyelu (1991) 4 NWLR Part 183 Page 30.
He concluded that the Petitioner has failed to prove his alleged nomination by PDP as its candidate for the election.
He finally urged that the Judgment of the lower Tribunal be set aside for being incompetent or alternatively dismiss the Petitioner’s case for lack of merit.
In the determination of these issues, I will like to start by reference to the evidence presented before the Election Petitions Tribunal.
Both the 1st Respondent/Appellant and the Petitioner/Respondent were in agreement that PDP had its primaries for the House of Assembly candidates on 18/11/06. The point of divergence is that while the Petitioner/Respondent claims to hate won the primaries on 18/11/06 and the PDP consequently forwarded his name to INEC, the 1st Respondent/Appellant disagreed and alleged that the primary of 18/11/06 was marred by violence, and was cancelled, and was rescheduled for 20/11/06 but that the petitioner/Respondent boycotted same and the 1st Respondent/Appellant was declared the winner and nominated by PDP. Pursuant to Section 32 (1) of the Electoral Act 2006, it is the exclusive prerogative of the Political parties to submit the names of candidates the party proposes to sponsor at the elections to INEC. The Political parties shall do so not later than 120 days before the date appointed for the said election. And INEC in it’s guidelines to the 2007 elections had fixed 15/12/2007 as the deadline for political parties to submit their list of candidates to the House of Assembly elections held on 14/4/07.
In this appeal under consideration, the petitioner/Respondent led direct evidence to the effect that after PDP primaries of 18/11/06, the, party forwarded his name to INEC as its candidate in the said election, and INEC issued him with:-
Form CF 001
– Form EC4B (111) which he duly completed and returned to INEC and that INEC after due verification cleared him and published his name in its initial list of candidates in the election of 14/4/07. (See Pages 183 to 185 of the record). It is important to note that:
– Form CF 001 was admitted in evidence as Exhibit 4 while
– Form EC 4B (111) was admitted in evidence as Exhibit 5.
– Initial list of candidates published by INEC particularly page 13 therein was admitted as Exhibit 6.
Exhibit 4 which is form CF 001 is what is referred to in Section 32(2) of the Electoral Act 2006 and a careful examination of the exhibit showed that the petitioner/Respondent swore to the Oath therein on 14/12/06 which is within the 120 days before the date appointed for election which was held on 14/4/07.
On the other hand, the 1st Respondent/Appellant tendered in evidence the following;-
– Exhibit 11 his own Form CF 001
– Exhibit 21 for CF 004C
– Exhibit 22 form CF 002C
(See Page 188 of the Record).
A careful examination of Exhibits ’21’ and ’22’ tendered at the trial showed that they were completed on 26/2/07 but received by INEC on 21/2/07.
The conflict in dates referred to above is an anomaly which contravenes Section 31(1) of the Electoral Act 2006.
Exhibit 7 is a letter tendered before the Election Petition Tribunal which was dated 7/2/07 and received by INEC on 21/2/07.
This document is a letter written by PDP directing INEC to substitute the Petitioner/Respondent’s name with that of 1st Respondent/Appellant.
According to the date of receipt by INEC, Exhibit 7 was received less than 60 days to the date of election; therefore it failed to ‘meet the requirements in Section 34(1) and (2) of the Electoral Act 2006. (See Page 188 of the record.)
See – Ugwu v. Ararume (Supra) on the interpretation of Section 34(1) (2)& (3) of the Electoral Act 2006.
In view of the foregoing the inevitable conclusion I arrived at is that the Lower Tribunal was right when it held that the Petitioner/Respondent has proved that he was validly nominated by PDP, which means that he has proved his status as a candidate in the election entitling him to file the Petition in his individual capacity.
Furthermore, the lower Tribunal was also right to have held that the 1st Respondent failed to discharge the onus on him and thus disbelieved his evidence regarding his alleged nomination by the PDP.
Issues 2 & 3 are therefore resolved in favour of the Petitioner/Respondent.
In the result, this appeal fails and it is accordingly dismissed.
The Petitioner/Respondent is entitled to costs which is fixed at (N35, 000.00) Thirty-Five Thousand Naira against the 1st Respondent/Appellant.
Other Citations: (2008)LCN/2694(CA)
