Aisha Jummai Alahassan & Anor V. Mr. Darius Dickson Ishaku & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

On 11 February 2016, your lordships heard and dismissed this appeal for reasons to be given on 22 February 2016. These are the reasons that led me to that conclusion.

THE FACTS ARE THESE

On 11 and 25 April 2015 the 3rd Respondent, the regulatory body charged with the conduct of elections in Nigeria conducted election for the office of Governor of Taraba State. There were eleven candidates at that election. The 1st Appellant, sponsored by the 2nd Appellant, and the 1st Respondent sponsored by the 2nd Respondent were candidates at the election. The 1st Respondent was declared the winner of the election with a score of 369,318votes, while the 1st Appellant came in second with 275,984 votes. The 1st Appellant and her party, the 2nd Appellant, were not satisfied with the outcome of the election, and so they filed a petition. The other candidates were satisfied with the outcome of the election.

The Grounds of the Petition are:

(a) That the 1st Respondent was at the time of the election, not qualified to contest for the Office of Governor of Taraba State, having not

1

been sponsored by a political party, a condition precedent prescribed under the Constitution of the Federal Republic of Nigeria,1999 (as amended)

(b) That the election and return of 1st Respondent was invalid by reason of substantial non compliance with the provisions of the Electoral Act 2010 (as amended) and Approved Guidelines and Regulations for the conduct of 2015 General Elections and Manual for Election Officials 2015 which non-compliance substantially affected the result of theelection.

(c) That the election and return of 1st Respondent was invalid by reason of corrupt practices which vitiated the election.

(d) That contrary to result declared by 3rd Respondent, the 1st petitioner indeed won majority of lawful votes cast and satisfied the mandatory constitutional threshold and spread across the local government areas of Taraba State and ought to have been declared winner and returned as the duly elected Governor of Taraba State at the 11 April and 25 April 2015 election.

The Petitioners prayed for the following:

1. That it may be determined that the 1st Respondent was at the time of the election having failed to meet the

2 constitutional requirement of being sponsored by a political party.

2. That it may be determined that the return of the 1st Respondent as the Governor of Taraba State in the election held on 11 and 25 April, 2015 is void for corrupt practices and substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended).
3. That it may be determined that the 1st Respondent was not duly elected or returned in the pulling units complained of in Ardo-Kola, Bali, Donga, Ibbi, Jalongo, Karim Lamido, Kurme, Lau Takum, Ussa, Wukari, Yorro and Zing Local Governments of Taraba State by majority of lawful votes cast at the Governorship election held on 11 and 25 April, 2015.
4. That it may be determined that the 1st Petitioner scored the majority of lawful votes cast in the election held on 11 and 25 April, 2015 and satisfied the constitutional requirement and is entitled to be returned by the 3rd Respondent as having been duly elected Governor of Taraba State in the election held on 11 and 25 April, 2015.

The Petitioners ask for the following reliefs:

1. AN ORDER that the 1st Petitioner be issued forthwith with a certificate of

3return as the duly elected Governor of Taraba State, pursuant to the election held on 11 and 25 April, 2015.

2. In the alternative to (3) and (4) above, that it may be determined that the elections in the polling units and wards in Ardo-Kola, Bali, Donga, Ibbi, Jalingo, Karim, Lamido, Kurme, Lau Takum, Ussa, Wukari, Yorro and Zing Local Governments of Taraba State characterised by electoral irregularities and non-compliance (i.e. over-voting) in the Governorship election held on 11 and 25 April, 2015 are invalid and that fresh elections be held in the said local Government Areas, amongst the contestant who participated in the original election, and that result of the fresh election in the affected Local Government Areas be added to the scores of the respective candidates to determine and declare the eventual winner of majority of lawful and valid votes cast amongst the same contestants who stood nominated and entitled to contest the said election on 11 and 25 April, 2015.

The Respondents responded with their replies urging the Court to dismiss the entire petition.

At the hearing of the petition the Appellants’ called seventy-nine witnesses while

4 the 1st Respondent called fifty-one witnesses. The 2nd and 3rd Respondents called a witness each. On hundred and twenty three documents were admitted as exhibits. The 1st Appellant’s case is that she scored the majority of lawful votes cast in the election and is entitled to be returned by the 3rd Respondent as the duly elected Governor of Taraba State. And that the 1st Respondent is not qualified to have contested the elected for the office of Governor of Taraba State since he was not sponsored by a Political Party (in this case the (PDP) as contemplated under Section 177 of the Constitution.

On the election the Election Tribunal said:

“…the Petitioners have failed to prove over voting and other malpractices allegedly founded on the non-use or improper use of the card reader by the 3rd Respondent…”

And on the qualification of 1st Respondent to contest election for the office of Governor of Taraba State the Election Tribunal said:

“… having found that the purported nomination of the 1st Respondent never took place, he was therefore in law not sponsored by the 2nd Respondent he never participated in the Taraba State Governorship

5election held on 11 and 25 April 2015. Accordingly all the votes purportedly cast for the 1st Respondent on the 11 and 25 April 2015 are wasted votes…. Having found that the 1st Respondent was not duly sponsored by a Political Party as required by the Constitution and the Electoral Act, 2010 he could not have qualified to contest the election in question.”

ON this reasoning the Election Tribunal declared the 1st Appellant the winner of the election. The 1st and 2nd Respondents lodged an appeal. It was heard by the Court of Appeal Abuja. That Court upset the judgment of the Election Tribunal when it said that:

“…. we are of the view that the Appellants’ appeal is meritorious and it is hereby allowed. The judgment of the Taraba State Governorship Election Petition Tribunal delivered on 7 December, 2015 is hereby set aside in its entirety.”

The following consequential orders are hereby made:

1. The Election and return of the Appellant as the Governor of Taraba State in the elections of 11 and 25 April, 2015 is hereby upheld and sustained.
2. The Certificate of Return issued to the Appellant by the 4th Respondent to this appeal remains

6 valid.

3. The Petition of the 1st and 2nd Respondents is hereby dismissed in Toto.

This appeal is against that judgment. Briefs of argument were filed and exchanged. The Appellants’ brief was filed on 28/1/2010. Reply briefs to the 1st, 2nd and 3rd Respondents were filed on 3/2/2016, 4/2/2016 and 7/2/2016. The 1st Respondent’s brief was filed on 1/2/2016. The 2nd Respondent’s brief was filed on 3/2/2016. While the 3rd Respondent did not file a brief.

Learned counsel for the Appellant, Mr. A.J. Owonikoko, SAN formulated six issues for determination of this appeal. They are:

ISSUE 1

Having regard to Section 137 of the Electoral Act, 2010 (as amended) whether Appellants did not have the locus standi to challenge the non qualification of the 1st Respondent for sponsorship as required under Section 177(c) of the Constitution .

ISSUE 2

Whether the Court of Appeal properly construed Section 177 (c) of the Constitution with regards to sponsorship to content Governorship Election in the face of undisputed evidence of PW2 and exhibit A5

7 to the effect that 2nd Respondent did not conduct any primary election to entitle them to sponsor the 1st Respondent in the April 11 and 25, 2015 election to of Office of Governor of Taraba State as required under Section 87 (4) of the Electoral Act, 2010 .

ISSUE 3

Whether Section 87(9) of the Electoral Act was rightly invoked by the Court of Appeal in determining the Petitioners ground of non-qualification of the 1st Respondent to contest the Taraba State Governorship Election of 11 and 25 April, 2015.

ISSUE 4

Having regard to the duty on Court to consider the pleading of parties in its entirety, whether the Court of Appeal correctly applied the principle of admission of evidence in coming to the conclusion that Appellants made an inconsistent case that the 1st Respondent was not qualified to contest the Governorship Election of Taraba State on account of lack of sponsorship.

ISSUE 5

Whether the wrongful description of RW52 by the Trial Tribunal occasioned a miscarriage of Justice.

8

ISSUE 6

Whether the case as proved by the Petitioners did not entitle the Lower Court to uphold the return of the 1st Petitioner/Appellant as winner of the Governorship Election as determined by the Trial Tribunal.

Learned counsel for the 1st Respondent, Mr. K.G. Agabi SAN formulated four issues for determination of this appeal. They are:

ISSUE 1

Whether their lordships of the Court below were right when they held that in the light of the decision of this Honourable Court in PDP v. INEC (2014) 17 NWLR (Pt.1437) p.525, to the effect that where it is alleged that a person is or was not qualified to contest election to the Office of Governor of a State as envisaged by Section 138(1) (a) of the Electoral Act , it is Sections 177 and 182 of the Constitution that are being contemplated and that therefore their lordships of the Tribunal erred in law when they relied on the provisions of the Electoral Act, 2010 to hold that the 1st Respondent did not emerge from a valid primary conducted by his party an proceeded on that ground to annul his

9 election.

ISSUE2

Whether their lordships of the Court below were right when they held that the ground of the petition that the 1st Respondent was not qualified to contest the election because he was not sponsored by the 2nd Respondent was inconsistent with the facts pleaded which were to the effect that the 1st Respondent was in fact so sponsored and if so, whether their lordships were right when they held that the Appellants were bound by their pleading and could not be heard to contend the contrary.

ISSUE 3

Whether their lordships of the Court below were right when they held that the 1st Respondent’s right to fair hearing was violated hereby occasioning a miscarriage of justice when their lordships of the Tribunal failed to review or give any consideration whatsoever to the evidence of the 51 witnesses called by the 1st Respondent in defence of the petition.

ISSUE 4

Whether their lordships of the Court below were right when they held that the Tribunal erred in law when their lordships having held that the 1st Respondent was not

10 qualified to contest proceeded to declare the 1st Appellant “…winner of the Governorship Election held in Taraba State on 11 and 25 April, 2015 having scored the next highest votes and entitled to be issued with the Certificate of return by the 3rd Respondent” inspite of the 1st Appellant’s own pleading that the election was null and void on account of corrupt practices an acts of non-compliance and inspite of the provisions of Section 140 (1) and (2) of the Electoral Act, 2010 .

Learned counsel for the 2nd Respondent Mr. S. Akuma SAN formulated five issues for determination of the appeal. They are:

ISSUE 1

Whether the Court below was right when it held that the Appellants’ lacked the locus standi to challenge the 2nd Respondent’s party primaries that nominated the 1st Respondent as a candidate for the 2015 Taraba State Governorship Election.

ISSUE 2

Whether the sponsorship of the 1st Respondent by the 2nd Respondent in the April, 2015 Taraba State Governorship Election complied with the provision of Section 177(c) of the Constitution

11 and can the Appellants’ rely on alleged non holding of primary election to question the sponsorship of the 1st Respondent under Section 177 (c) of the Constitution .

ISSUE 3

Whether the Court below was right when it held that Appellants’ in their pleadings admitted that the 1st Respondent was duly nominated and sponsored by the 2nd Respondent.

ISSUE 4

Whether the Court below was right when it held that the Tribunal failed to evaluate or review the evidence of the 1st Respondent’s 51 witnesses.

ISSUE 5

Was the Court below right when it set aside the order of the Tribunal that declared the 1st Appellant the winner of the questioned election notwithstanding the provision of Section 140(2) of the Electoral Act, 2010 .

The Appellants case is that the 1st Respondent is not qualified to have contested the election for the office of Governor of Taraba State since he was not sponsored by a Political Party (in this case the PDP). The Appellants’ issue1, 2, 3 and 4 are relevant in this

12 regard.

At the hearing of the appeal on 11 February, 2016 counsel adopted their briefs and made submission in amplification of their briefs. Not to sound repetitive counsel submissions shall be reproduced together with submissions in their respective briefs. I shall address issue 4 first and thereafter issues 1, 2 and 3 together.

ISSUE 1 (4 in the Appellants brief)

Having regard to the duty on the Court to consider the pleadings of parties in its entirely, whether the Court of Appeal correctly applied the principle of admission of evidence in coming to the conclusion that Appellants’ made an inconsistent case that the 1st Respondent was not qualified to contest the Governorship election of Taraba State on account of lack sponsorship.

Learned counsel for the Appellant argued that paragraphs 3 and 4 of the petition are introductory parts of the petition, contending that a finding that paragraphs of the pleadings amounts to admission can only arise after the whole pleadings are considered. Relying on Newbreed Org. Ltd v. Erhomsele (2006) 5 NWLR (Pt.974) p.499 he submitted that the Appellants pleadings do not amount to admission and that the

13 1st Respondent was not sponsored by the 2nd Respondent.

Learned counsel for the 1st Respondent observed that the Appellants admitted that the 1st Respondent actually satisfied the provisions of Section 177 (c) of the Constitution since paragraphs 3, 4, 9 and 74 (6) of their pleadings constitute admission. Reliance was placed on Section 20 and 21 of the Evidence Act . Concluding he submitted that the Appellant cannot be allowed to lead evidence contrary to his pleadings. He urged this Court to dismiss the appeal.

Learned counsel for the 2nd Respondent observed that the Court of Appeal was correct when it said that paragraphs 3 and 4 of the Appellants pleadings amounts to an admission that the 1st Respondent was sponsored by the 2nd Respondent. Reliance was placed on Odutola v. Papersack Nig Ltd (2007) ALL FWLR (Pt.350) p.1214

He submitted that the Appellants’ pleaded inconsistent facts on the 1st Respondent’s sponsorship by the 2nd Respondent.

After examining paragraphs 3 and 4 of the Appellant’s pleading the Court of Appeal said:

“This is a glaring and fatal admission by the 1st and 2nd Respondents (now Appellants) that the

14 Appellant (now 1st Respondent) actually satisfied the provisions of Section 177(c) of the Constitution … and those paragraphs of the petition constitute admission against interest to Section 20 and 21 of the Evidence of Act .”

The Appellants case is that the 1st Respondent was not sponsored by the PDP to contest the Governorship Election for Taraba State. The starting point would be to examine the Appellants pleadings. This is so because the main aim of pleadings is to convey the case and the claim of the plaintiff (Petitioner) to the defendant (1st Respondent). In this way the defendant would not be taken by surprise. He would either admit the claim or present his own defence. So if pleadings are to be of any use parties and the Courts are bound by them. See Adesanya v. Aderonmu (2000) 9 NWLR (Pt.672) P.370,

Echir v. Nnamani (2000) 8 NWLR (Pt.667) P.1,

Ogbogu v. Ugwuegbu (2003) 10 NWLR (Pt.827) p.189, Makinde v. Akinwale (2000) 2 NWLR (Pt.645) p.435.

On no account would a party be allowed to contend the contrary.

What did the Appellants plead in support of their case that the 1st Respondent was not sponsored by the PDP.

Paragraphs 3, 4, 11

15and 74(6) of the Appellants’ pleading state as follows:

“3. The 1st Respondent is a member of Peoples Democratic Party and was its candidate in the Taraba State Gubernatorial Election held on 11 and 25 April, 2015.

4. The 2nd Respondent, Peoples Democratic Party is a duly registered political party and sponsor of the 1st Respondent.
5. The Petitioners further state that in the said election, the following votes/scores were recorded for 11 political parties fielded and sponsored their candidates.

NONAMES OFCANDIDATESPOLITICAL PARTY SCORES

1. P.C. BURI AA 152
2. K. BALA ACPN 958 A.J. ALHASSAN APC 275,984
3. Y.U. ARABI DPP 579
4. R.U. UMAR LP 875
5. K. UMARU PDM 1,565
6. D.D. ISHAKU PDP 369,31817
7. B. MOHAMMED PPA 707
8. H. MOHAMMED PPN 908
9. D.S. KENTL SDP 2298
10. G. USMAN UPP 135

74(6) “…that fresh elections be held in the said local Government Areas, amongst the contestants who participated in the original election…”

The Appellants are bound

18

by their own pleadings it is so clear alter reading the paragraphs referred to above that the Appellants are actually saying that the 1st Respondent was sponsored by the 2nd Respondent. Their case that the 1st Respondent was not sponsored by the 2nd Respondent is inconsistent with the facts pleaded which are that the 1st Respondent was in fact sponsored by the 2nd Respondent.

To support their case that the 1st Respondent was not sponsored by the 2nd Respondent, their pleadings should have read:

“The 1st Respondent was purportedly sponsored by the PDP.”

The long held position of the law is that evidence which is at variance with pleaded facts are inadmissible and ought to be rejected by the Court. See Alade v. Olukade (1976) 2 SC p.183

Emegokwe v. Okadigbo (1973) 4 SC p.113

The evidence from the Appellants, i.e. PW2 and Exhibit A5 that the PDP did not conduct primaries and so the 1st Respondent was not sponsored by the PDP is at variance with paragraphs 3, 4 and 11 of the Appellants pleadings.

Consequently the evidence adduced by the Appellant that the 1st Respondent was not sponsored by PDP ought to have been rejected by the

19 Tribunal.

It is the singular duty of counsel to object to inadmissible evidence, but if somehow inadmissible evidence is admitted it becomes the duty of the Court when it delivers judgment to treat such evidence as if it was not admitted. Courts must ensure that evidence contrary to pleading of a party is never admitted. If such evidence escapes the scrutiny of the Court of first instance the Appeal Court must reject such evidence and decide the case on legal evidence. In this case the evidence adduced by the Appellants’ that PDP never conducted primaries is contrary to their pleadings. Such evidence is rejected.

I must remind learned counsel for the Appellants’ that pleadings is the foundation of a claim. Once it is defective the case would be in serious legal problems (as in this case) leading to its eventual collapse like a pack of cards.

Sections 20 and 21 of the Evidence Act provides for admission.

Admissions in pleadings are a waiver of all controversy on the fact the pleader admits. The Court of Appeal correctly applied the principle of admission in the Appellants pleadings in coming to the conclusion that the Appellants made an

20 inconsistent case when he said in one breath that the 1st Respondent was not sponsored by the 2nd Respondent but in the next breath that he was sponsored by the 2nd Respondent to contest the Governorship election of Taraba State.

On the State of the Appellants pleadings’ viz paragraphs 3, 4 and 11, the fact that the 1st Respondent was sponsored by the 2nd Respondent is indisputable. A party should be consistent in stating his case in his pleadings and consistent in proving it. He would not be allowed to take one stand in his pleadings and the opposite during trial.

The Appellants’ cannot admit in their pleadings that the 1st Respondent was sponsored by the 2nd Respondent and an entirely different and inconsistent case by their witness (PW2) and hope to succeed. This appeal ought to come to an end now in view of the state of the pleadings, but in view of the fact that full reasons why an election appeal succeeds or fails should be given by this Court. I shall now consider issue 2.

ISSUE 2 (Issues 1, 2, and 3 in Appellants brief).

(a) Having regard to Section 137 of the Electoral Act, 2010, whether Appellants did not have the locus standi to

21 challenge the non-qualification of the 1st Respondent for sponsorships required under Section 177(c) of the Constitution.

(b) Whether the Court of Appeal properly construed Section 177(c) of then Constitution with regards to sponsorship to contest Governorship Election in the face of undisputed evidence of PW2 and exhibit A5 to the effect that 2nd Respondent did not conduct any primary election to entitle them to sponsor the 1st Respondent in the April 11 and 25, 2015 election to the Office of Governor of Taraba State as required under Section 87(4) of the Electoral Act, 2010.

(c) Whether Section 87(9) of the Electoral Act was rightly invoked by the Court of Appeal in determining the petitioners ground of non-qualification of the 1st Respondent to contest the Taraba State Governorship Election of 11 and 25 April, 2015.

Learned counsel for the Appellant observed that the 2nd Respondent did not hold any primary for the sponsorship of the 1st Respondent and by virtue of Section 137 of the Electoral Act 2010 the Appellants’ have locus standi to challenge the sponsorship of the 1st Respondent since she has an interest in the outcome of the election

22of the 1st Respondent. Reliance was placed on Kamil v. INEC (2010) 1 NWLR (Pt.1174) p.48

He submitted that the 1st Respondent was not qualified to contest the election since he was not sponsored by any Party. Reliance was placed on Section 177 (c) of the Constitution . Learned counsel argued that the cases of MA Shinkafi & Anor v. A.A. Yari & 2 Ors and T. Tarzoor & Anor V.S. Ortom & 2 Ors delivered by this Court on 8/1/2016 and 15/1/2016 are distinguishable from this case in that in the cases supra primaries held but in this case there was no primaries. Reference was made to Section 87 (1) (2) (4)(b) , (9) of the Electoral Act . PDP & Anor v. T Sylva & Ors (2012) 13 NWLR (Pt.1316) p. 85

N. Ukachukwu v. PDP & Ors (2014) LPELR 22115

He urged this Court to resolve this issue in favour of the Appellants’.

Learned counsel for the 1st Respondent observed that by virtue of Section 138 (1) (a) of the Electoral Act a Tribunal has no power to inquire into the primaries of a political party, contending that a Tribunal cannot go beyond establishing the requirements of Section 177 and 182 of the Constitution . Reliance was placed

23 on M.A. Shinkafi & Anor v. A.A. Yari & Ors SC. 907/2015 delivered by this Court on 8/1/2016.

He further observed that neither the Appellants’ nor the Tribunal had any right to challenge the nomination of the 1st Respondent. Reliance was placed on Section 87(9) of the Electoral Act.

Uzodinma v. Izunaso (2011) 17 NWLR (pt.1275) p.60

Emeka v. Okadigbo (2012) 18 NWLR (Pt.1331) p.55

J.A. Ucha v. E. Onwe & Ors (2011) 4 NWLR (pt.1237) p.386

He urged this Court to resolve this issue in favour of the 1st Respondent and dismiss this appeal since the Appellants’ lack the locus standi to question the internal affairs of the 2nd Respondent party.

Learned counsel for the 2nd Respondent adopted the oral submissions of learned counsel for the 1st Respondent. He observe that it is only INEC and the aspirant who participated in a primary election that can complain about the conduct of the primaries, contending that the Appellants’ have no locus standi to challenge the primary elections. Reference was made to Section 85, 87 of the Electoral Act 2010. M.A. Shinkafi & Anor v. A.A. Yari & 2 Ors SC.907/2015 delivered by this Court on

24 8/1/2016.

PDP v. Sylva (2012) ALL FWLR (Pt.637) P.606

Relying on recent decisions of this Court to wit. Daniel v. INEC (2015) 9 NWLR (Pt.1463) p. 113. M.A. Shinkafi & Anor v. A.A. Yari & 2 Ors supra Tarzoor & Anor v. S. Ortom & 2 Ors SC.928/2015 delivered by this Court on 15/1/2016.

He urged the Court to resolve this issue in favour of the 1st Respondent.

The Appellants’ case is that at the time of the election the 1st respondent was not qualified to contest for the office of Governor of Taraba State since he was not sponsored by a political party.

Section 177 of the Constitution provides for qualification to contest for the office of Governor of a State while Section 182 of the Constitution states when a person seeking that office is disqualified. Section 177 of the Constitution states that:

177. A person shall be qualified for election to the Office of Governor of a State if-

(a) he is a citizen of Nigeria by birth;

(b) he has attained the age of thirty-five years;

(c) he is a member of a political party and is sponsored by that political party; and

(d) he has been educated up to at least School

25 Certificate level or its equivalent.

Before a person can stand election for the office of Governor of a State he must belong to a political party and be sponsored by that party. This is so because the Constitution and the Electoral Act make no provision for Independent Candidates.

The Appellants pleaded that the 1st Respondent belongs to the PDP and was sponsored by it.

The 1st Respondent has satisfied Section 177 of the Constitution particularly Sub-section (c)

The 1st Respondent is a member of the PDP and was sponsored by it.

Section 138(1) of the Electoral Act states that:

138(1) An election may be questioned on any of the following grounds, that is to say:

(a) that a person whose election is questioned was, at the time of the election not qualified to contest the election;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c) that the Respondent was not duly elected by majority of lawful votes cast at the election; or

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

While

26Section 31(5) and (6) of the Electoral Act states that:

31(5) Any person who has reasonable ground to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.

A person who participated in an election, and it is his desire to challenge the election of the winner on the ground that the winner was not qualified to contest the election can do so only under Section 177 of the Constitution, if he failed to do so under Section 31(5) and (6) of the Electoral Act. See PDP v. INEC (2014) 17 NWLR (Pt.1437) p. 525

My lords, by virtue of the provisions of Section 138(1) (a) of the Electoral Act a Tribunal’s power to decide whether a person is qualified to contest an election is restricted to

27establishing the requirements of Section 177 and 182 of the Constitution against the adverse party. An election Tribunal has no jurisdiction to inquire into the primaries of a Political Party. See M.A. Shinkafi & Anor v. A.A. Yari & 2 Ors SC.907/2015 delivered on 8/1/2016 and T. Tarzoor & Anor v. S. Ortom & 2 Ors SC.928/2015 delivered on 15/1/2016.

The 1st Respondent was sponsored by the 2nd Respondent, the PDP to contest election for Governor of Taraba State a fact admitted by the Appellants’, The Appellants’ case that the 1st Respondent was not sponsored by his party or that he was affected by Section 177 (c) of the Constitution fades into insignificance. It is now longer an issue.

Section 87(a) of the Electoral Act states that:

87(a) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State of FCT for redress.

The above provision of the

28 Electoral Act is available to a dissatisfied aspirant who participated in his parties primaries. In a plethora of cases this Court has explained party primaries and who can complain when they are not properly conducted. See Onuiha v. Okafor & Ors (1983) 14 NSCC p.494

Dalhatu v. Turaki (2003) 15 NWLR (Pt.843) p.310

On who can challenge the conduct of primaries of a political party, I said in PDP v. Sylva & 2 Ors (2012) 13 NWLR (Pt.1316) P.85 that:

“… Section 87(9) of the Electoral Act confers jurisdiction on the Court to hear complaints from a candidate who participated at his party’s primaries and complains about the conduct of the primaries…”

In Lado v. CPC (2011) 18 NWLR (Pt.1279) p.689

Onnoghen, JSC said that

“… Section 87 of the Electoral Act, 2010, as amended deals with the procedure needed for the nomination of candidate by a political party for an election and specifically provided a remedy for an aggrieved aspirant who participated at the party primaries which produced the winner by the highest number of votes.”

Indeed in Daniel v. INEC 2015 9NWLR (pt.1463) p.113.

I restated the well laid down

29 position of the law that only a person who participated at a party primary can complain about how it was conducted. More recently this Court made the same observations per Okoro JSC in M.A. Shinkafi & Anor v. A.A. Yari & 2 Ors SC.907/2015 delivered by this Court on 8/1/2016 and T. Tarzoor & Anor v. S. Ortom & 2 Ors SC.928/2015 delivered by this Court in 15/1/2016 per Ngwuta JSC. Furthermore the following cases decided by this Court have laid to rest that issue.

Udodinma v. Izumaso (2011) 17 NWLR (Pt.1275) p.60

Emeka v. Okadigbo (2012) 18 NWLR (Pt.1221) p.55

J.A. Ucha v. E. Onwe & Ors (2011) 4 NWLR (pt.1237) p.386.

In Taiwo v. Adegboro & 2 Ors (2011) 5 SC (pt.ii) p.179. I said that:

“The rule about locus standi developed primarily to protect the Courts from being used as a play ground by professional litigants, or, and meddlesome interlopers, busybodies who really have not real stake or interest in the subject matter of the litigation.”

A petitioner satisfies the Court that he has locus standi if he is able to show that his civil rights and obligations have been or are in danger of being infringed.

By

30the clear provisions of Section 87 (9) of the Electoral Act which has been explained repeatedly by this Court in cases alluded to in this judgment the Appellants’ have no locus standi to question the nomination and sponsorship of the 1st Respondent by the PDP after admitting that fact, and even if the fact was not admitted.

Relying on Section 140 (1) and (2) of the Electoral Act, the Election Tribunal found that since the 1st Respondent was not sponsored by a Political Party all his votes are wasted votes and that since the 1st Appellant was the candidate with the next highest votes, was the winner of the election. The Court of Appeal had a completely different view when it said:

“It is thus clear that where in an election petition proceedings a Court or Tribunal comes to a conclusion that the person elected or returned in an election was at the time of the election not qualified to contest the election the option open to the Court or tribunal pursuant to Section 140(2) of the Electoral Act, 2010 is an order nullifying the election and shall order a fresh election to be conducted into the office in question.”

The Court of Appeal is correct. The

31 Court of Appeal is simply stating the correct interpretation of Section 140 (2) of the Electoral Act which the Election Tribunal was wrong in its interpretation of the said section. Section 140 (2) is not applicable since the 1st Respondent was qualified to contest the election.

After examining the sad State of the Appellants’ pleadings where they admitted that the 1st Respondent was indeed sponsored by the 2nd Respondent the Appellants’ filed woefully to show that any of the provisions of Section 177 of the Constitution applies to the 1st Respondent. After an examination of decided authorities it is so clear that party primaries are the domestic affair of the political party which no outsider can complain about. Only aspirants at the primaries can complain about the conduct of party primaries. Furthermore an election tribunal has no jurisdiction to comment or examine how party primaries were conducted. Jurisdiction for such an exercise resides with Federal High Court, High Court of a State, or FCT High Court and only at the instance of a dissatisfied aspirant at the primaries.

Finally nomination, sponsorship of candidates by a party are pre-election

32 matters that should be heard before petition is heard in an Election Tribunal.

In conclusion a brief summary of the reasons why this appeal fails would suffice at this stage.

1. Appellants’ pleadings were against their own case rather than in favour of their case.
2. Evidence of PW2 & Exhibit 5 in favour of the Appellants’ to show that the 2nd Respondent did not conduct primaries is at variance with Appellants’ pleadings and so worthless.
3. It is only a person who participated in his party primaries that has locus standi to complain about how the primaries were conducted. The 1st Appellant not being a member of the PDP (2nd Respondent) has no locus standi to say that the 1st Respondent was not sponsored by the 2nd Respondent.
4. The 1st Appellant in paragraph 74 (6) of her petition called for fresh election, and that the 1st Respondent should participate. How may I ask can a person the Appellant’ says was not sponsored by his party participate in afresh election

This appeal has no redeeming features. It lacks substance and it ought to fail. It is accordingly dismissed.

Parties to bear their costs.

<br

33</br

SC.45/2016

My lords, the Appellants’ in this appeal formulated three issues for determination. The issues are on:

(a) locus standi

(b) Evidence of PW2 and Exhibit 5

(c) Whether the Court of Appeal should not have upheld the return of the 1st Respondent/Appellant.

These issues have been addressed in detail in SC.46/2016. I adopt my judgment in SC.46/2016.

Appeal Dismissed. Parties to bear their costs.

SC.47/2016

My lords, the Appellants’ in this appeal formulated three issues for determination. The issues are on:

(a) locus standi

(b)Section 177(c) of the Constitution andEvidence of PW2 and Exhibit A5

(c) Whether the Court of Appeal should not have upheld the return of the 1st petitioner/Appellant.

These issues have been addressed in detail in SC.46/2016. I adopt my judgment in SC.46/2016.

Appeal Dismissed. Parties to bear their costs.

SC.48/2016

My lords, all learned counsel agree that this appeal shall abide the judgment in SC.46/2016.

Accordingly this appeal is dismissed. Parties shall bear their costs.

SC.50/2016

34

My lords, we observed in court that this cross appeal does not in any way improve the position of the Cross/Appellant, a fact agreed to by Mr. J.B. Daudu SAN, learned counsel for the Appellant, and all other counsel.

Accordingly this cross appeal is hereby dismissed.

Parties to bear their own costs.

SC.58/2016

My lords, we observed in Court that this cross-appeal does not in any way improve the position of the cross-appellant, a fact agreed to by Mr. K. Agabi, SAN, learned counsel for the Cross-Appellant and all other counsel.

Accordingly this cross appeal is hereby dismissed.

Parties to bear their own costs.

SC.59/2016

My lords, we observed in Court that this cross-appeal does not in any way improve the position of the Cross-Appellant a fact agreed to by Mr. S. Akuma SAN, learned counsel for the Cross-Appellant, and all other counsel.

Accordingly this cross appeal is hereby dismissed.

Parties to bear their own costs.

---

SC.46/2016 (CONSOLIDATED)